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SPBILF Prize

3.4. Justice and Proportionality in Enforcement of Liability for Exclusive Rights Infringement

Track:3. Smart Society

Description

After the adoption of Part 4 of the Civil Code of the Russian Federation, copyright holders may choose, in their own discretion, to claim, in case of their rights infringement, not for damages but for indemnification in the amount from ten thousand to five million rubles, to be determined by court depending on the nature of the offense.

However, the judicial cases in the recent ten years have shown inconsistency noticed more than once by market players. Thus, the institute of indemnification for intellectual property rights infringement is, somehow, of penal nature, and its application in the present mode resulted not in small businesses discipline improvement but, otherwise, in their bankruptcies, because the legal provisions relieving a right holder from the burden of proof of the incurred damages amount upon indemnification claims in some cases, when infringers have committed a single offense consisting of intellectual rights infringement related to numerous intellectual properties, prevents courts from taking into account the degree of infringers’ guilt and their ability to be liable for the established amount. Moreover, courts also have problems with determination of the amounts of damages incurred by right holders as well as with establishment of the fact that the right holder has performed some actions aimed at prevention and elimination of its rights infringement and of other circumstances relevant for determination of the indemnification amount following the principles of justice and proportionality to the offense.

It is notable that in its recent Judgement No. 28-P dated December 13, 2016 the Constitutional Court of the Russian Federation commissioned the legislative body to amend the regulations applicable to intellectual property rights infringement after consideration of more fair ways to bring infringers to liability.

The panel discussion will include:

  • the review of the existing approaches to calculation of indemnification, first of all, for infringing with one and the same action of copyrights for several intellectual deliverables or identifications, in order to find their “common denominator” and then to align them with the constitutional principles of justice and proportionality of the liability to the offense committed;
  • the discussion of the international experience of awarding indemnification for intellectual property rights infringement and the procedures providing for the balance of rights and legal interests of all parties to civil transactions upon indemnification applications to infringers.

Moderators:

Lyudmila Novoselova

Chairman, Court for Intellectual Rights of the Russian Federation


Biography
Education, academic degree

Doctor of Law, Professor, Lomonosov Moscow State University (1978).

Professional experience

Chief Consultant of Crime Prevention Directorate; Senior In-house Auditor of Economic Crime Prevention Directorate; Chief Consultant of Economic Crime Prevention and Contractual Compliance Directorate; Lead Specialist of Crime Prevention and Contractual Compliance Directorate; Deputy Head of Crime Prevention Directorate of the State Arbitration Court of the RSFSR (1984 - 1992); Arbitrator of the State Arbitration Court of the RSFSR (March 1992 to April 1992); Judge at the Supreme Arbitration Court of the Russian Federation (April 1992 to February 2013); President of the Intellectual Property Court since February 2013. Head of the Intellectual Property Department of Kutafin Moscow State Law University; the highest qualification category. Legal experience: 38 years.

Specialist area, professional interest

Civil law (Intellectual property law, law of obligations).

Achievements, rewards

Honored Lawyer of the Russian Federation, 2nd class Medal for Service to the Russian judicial system; Honorary certificates of the Supreme Arbitration Court of the Russian Federation; Anniversary medals "20 Years of Russian Arbitration Courts" and "150 Years of Judicial Reform in Russia".

Publications, scientific works

The author of more than a hundred scientific works, including: "Mechanism of compensation for exclusive rights violation" (Journal of Economics and Law, 2017 No. 3) "Peculiarities of some law-giving facts in patent law" (Journal of the Intellectual Property Court, 2016 No. 12 ), "Scope of creditor rights transferring to another person (commentary to Article 384 of the Civil Code of the Russian Federation)" (Journal of Economics and Law, 2016 No. 3), "Concept of recourse responsibility in the field of intellectual property protection" (Journal of Economics and Law, 2015 No.3).

Sergei Voitishkin

Managing Partner, Baker & McKenzie CIS offices, Member, ICC Russia


Biography

CIS Managing Partner, Baker McKenzie

Education, academic degree

Law Department of Lomonosov Moscow State University (1997); holds a degree in linguistics from the Moscow Institute of Foreign Languages.

Professional experience

Baker McKenzie CIS managing partner, as well as the head of the Corporate & M&A practice group. He focuses his practice on mergers and acquisitions, as well as general corporate law matters; advised major multinational and Russian clients on structuring acquisitions and corporate reorganizations in various industries, including oil and gas, manufacturing, the chemical and metals industries, FMCG and banking sector.

Specialist area, professional interest

Corporate Counseling & Governance, Corporate Reorganizations, Private and Public M&A.

Achievements, rewards

Member of the Russian Bar; Recognized an Eminent Practitioner in the area of mergers and acquisitions by Chambers; recommended as a leading lawyer by IFLR1000 and Legal 500; According to IFLR1000 2014 he has "a very practical approach, a deep knowledge of M&A and very experienced".

Speakers:

Thierry Calame

Partner, Head of the Intellectual Property Practice Group, Lenz & Staehelin


Biography

Partner, Head of Intellectual Property Lenz & Staehelin, Zurich Office.

Education, academic degree

Swiss Federal Institute of Technology ETHZ (Dipl. nat. sc. ETH, 1991); University of St.Gallen (1994, lic. iur.); Max Planck Institute for Intellectual Property, Competition and Tax Law (1995, Germany); Admission to Zurich Bar (1996); University of Santa Clara (1998, USA); University of St.Gallen (2001). Masters degree in chemistry and a doctorate in law, Attorney at Law.

Professional experience

Dr. Thierry Calame is an expert in intellectual property matters, with a particular emphasis in patent law. He has vast experience as counsel in patent, trademark, unfair competition and copyright litigation as well as IP related arbitration. Thierry Calame also sits as arbitrator in IP related arbitration. In addition, Thierry Calame advises on licensing, the intellectual property aspects of a wide range of other transactions as well as pharmaceutical law, including regulatory and advertising issues.

Thierry Calame is permanent lecturer at the University of St.Gallen and at the Swiss Federal Institute of Intellectual Property and has published on a wide range of intellectual property topics. He acted as Reporter General of the International Association for the Protection of Intellectual Property (AIPPI) from 2010 to 2014

Thierry Calame is a member of the board of directors of the European Patent Lawyers Association (EPLAW). He is also a member of the board of directors of Innosuisse, the Swiss federal agency for science-based innovation

Other Activities

Permanent lecturer at the University of St.Gallen; Lecturer at the Swiss Federal Institute of Intellectual Property; Member of the Board of the Swiss group of AIPPI; Member of the Board of EPLAW (European Patent Lawyers Association); Chair of the AIPPI Committee on Unitary Patent / Unified Patent Court

Publications (Selection)

Calame, T. / Dorigo, L., Healthcare Enforcement & Litigation 2017 - Switzerland, in: Getting the Deal Through;

Calame, T. / Sterpi, M., Practical Law Global Guides, Patent Litigation, Jurisdictional Comparisons, 3rd ed., 2016

Calame, T. / Dorigo, L., Commercialisation of healthcare in Switzerland: overview, in: Practical Law Global Guides, Commercialisation of healthcare, 2nd ed., 2015

Calame, T. / Sterpi, M., Copyright Litigation, Jurisdictional Comparisons, 2nd ed., London 2014

Calame, T. / Hess-Blumer, A. / Stieger W., Commentary on the Patent Court Act (PatCA), 2013

Calame, T./Sterpi, M., Trade Mark Litigation, Jurisdictional Comparisons, 2nd ed., 2013

Calame, T. / Aebi, M., Enforceability, in: Halket (ed.), Arbitration of International Intellectual Property Disputes, 2012

Calame, T., Patent Infringement Worldwide, Claim Interpretation - Infringement - Damages, Busche/Trimborn/Fabry (eds.), Cologne 2010

Gadis Gadzhiev

Judge, Constitutional Court of the Russian Federation


Biography

Judge, Constitutional Court of Russian Federation.

Born on August 27, 1953 in the village of Shovkra of Laksk region, Dagestan Soviet Republic.

Education, academic degree

In 1975 graduated from Law Faculty of Moscow State University. After graduation worked as a lecturer at the Department of Civil Law of Dagestan State University.

In 1979 defended his Ph.D. thesis on civil law issues in agriculture at Moscow State University. In 1996 defended his doctoral dissertation on basic economic rights of the constitutional legal institutes in Russia and abroad (comparative research).

Professional experience

Since 1979 has been working as a consulting lawyer in the Presidium of the Dagestan Soviet Republic Supreme Council. 1982-1990 - Head of Law Department at the Dagestan Council of Ministers. Combined these responsibilities with lecturing and scientific activities.

1990 - elected a popular deputy of Dagestan Soviet Rupublic.

1990-1991 - Chair of the Supreme Council Commission of Dagestan Soviet Republic on legislation, law and order. Contributor to the draft projects of the Federal Agreement and a number of laws for Dagestan Republic. Co-chaired Demokratichesky Dagestan (Democratic Dagestan) faction in the Dagestan Supreme Council.

Former Chairman of the Dagestan Bar Union.

October 30, 1991 - elected the RF Constitutional Court judge in the third round.

Contributor to the federal constitutional law on the RF Constitutional Court. Participated in discussions about draft laws On Changes and Amendments to the RF Law On the Status of Judges in the Russian Federation and On Judicial System of the Russian Federation.

February, 1995 - member of the Constitutional Court First Chamber. Member of the Analytic Commission on Regulation and Enforcement of the Federal Constitutional Law On the Constitutional Court of the Russian Federation.

Publications, scientific works

192 scientific works, including five monographs.

Achievements and awards

Honoured Lawyer of the Russian Federation.

Member of the Presidential Council for Improvement of Civil Legislation.

Member of the Mayor Council on Managerial and Development Issues in the city of Moscow and the Advisory Board to the Presidential Centre for Strategic Development.

Editorial board member of five scientific magazines.

Chair of the Supervisory Board in the Institute of Law and Public Policy.

Chair of the Editorial Board of Comparative Constitutional Review magazine.

Natalia Gulyaeva

Partner, Hogan Lovells CIS


Biography

Partner, Head of Intellectual Property, Media and Technology Practice, Head of Life Sciences Industry Group, Hogan Lovells CIS.

Education, academic degree

Lomonosov Moscow State University (1998); German Academic Exchange Service Program for International Lawyers, Tubingen University and Dusseldorf Court of Appeal (OLG Dusseldorf, 2000); Ph. D. in Law, Lomonosov Moscow State University (2002); LL.M. magna cum laude, Tubingen University, Germany (2003); University of Bristol, UK, Residential Course in IP law (2004); Registered Patent Attorney No. 1004 (Russian Federation, 2005); Solicitor (England and Wales, 2012); ICC Advanced Arbitration Academy for Central and Eastern Europe (2015); Stockholm School of Economics, Executive MBA (since January 2016).

Professional experience

Partner, Head of IPMT (IP and TMT) and Life Sciences, Hogan Lovells CIS (since 2008); Counsel, Head of IPMT (IP and TMT) and Life Sciences, Lovells CIS, Moscow (2005); Senior Lawyer, Head of IPMT (IP and TMT), Lovells CIS, Moscow (2004); Lawyer, Lovells, Frankfurt (2002-2003); Lawyer, Lovells CIS, Moscow (2000); Trainee, Lovells, Dusseldorf (2000); In-house Counsel, Bosch, Moscow (1998-2000).

Specialist area, professional interest

Dispute Resolution (Arbitration and Litigation), Intellectual Property, Media and Communications Law, Copyright, Designs, Domain Names, Health Law, IT Law, Marketing and Advertising, Medical Device Law, Patents, Pharmaceutical and Biotechnology Regulatory Law, Privacy and Cybersecurity, Trade Secrets and Know-how, Trademarks.

Achievements, rewards

Received several WORLDLeaders International Awards in IP dispute resolution and transactional matters in Russia/ CIS. Winner of 2015 and 2016 “Client Choice Award” (Best in Trademarks and Best in Patents) and 2015 Euromoney's Women in Business Law Award (Intellectual Property). Consistently ranked as a leading IP, TMT and Life Sciences expert in Russia by all the major international legal directories, including Chambers Global and Chambers Europe, The Legal 500, Women in Business Law, World Trademark Review (WTR), Who's Who Legal and IAM Patent 1000.

Publications, scientific works

Authored and co-authored over 100 publications in domestic and international editions.

Vladimir Korneyev

Deputy Chairman, Court for Intellectual Rights of the Russian Federation


Biography

Deputy President of the Intellectual Property Court.

Education, academic degree

Lomonosov Moscow State University (2003), Candidate of Sciences in Law.

Professional experience

Senior consultant, Counsellor, Deputy Head of the analysis and synthesis of jurisprudence of the higher Arbitration Court of the Russian Federation (July 2003 to April 2010); Director of Department of public law and the process of the Supreme Court of Arbitration of the Russian Federation (April 2010 to April 2013); Deputy President of the Intellectual Property Court since April 2013.

Specialist area, professional interest

Civil law in general and issues of intellectual property rights protection in particular, antimonopoly legislation, civil and arbitration process.

Achievements, rewards

The fourth qualification class; honorary certificates of the Supreme Court of Arbitration of the Russian Federation and the Intellectual Property Court; Anniversary medals "20 Years of Russian Arbitration Courts" and "150 Years of Judicial Reform in Russia".

Publications, scientific works

"Computer programs, databases and topographies of integrated microcircuits as objects of intellectual rights" (Moscow, Statut, 2010); E. Pavlova, V. Kalyatin, V. Korneev "Introductory scientific commentary on part four of the Civil Code of the Russian Federation" (Consultant Plus, 2015);"Amendments to the Civil Code of the Russian Federation in the sphere of trademarks regulation" (Economy and Law № 12/2014б Pages 3-23); V. Korneev, N. Rossomagina " On dishonesty in the acquisition and (or) use of trademark rights" (Journal of the Intellectual Property Court № 8/2015).

Ekaterina Tilling

Senior Partner, Tilling Peters


Biography

Senior Partner, Attorney-at-Law, “Tilling Peters”.

Education, academic degree

Lomonosov Moscow State University (1998); Institute of State and Law Russian Academy of Sciences, postgraduate study (2001); Conflict Resolution, Research and Resource Institute, Inc. (CRI), Mediator of International and Community Conflicts (R-APC), 2006.

Professional experience

Baker & McKenzie (1994-); YUST Law Firm (1998); Pepelyaev, Goltsblat & Partners (2006); Goltsblat BLP (2008); Baker Botts (2010); Tilling Peters (2014). Teacher in leading Russian law schools – Higher School of Economics and MGIMO University - by running her author course on intellectual property rights for magistracy students.

Specialist area, professional interest

Recognized in Russia for her experience working in the practice area of Intellectual Property. She has practiced in IP for over 15 years, including both contention and non-contention matters.

Achievements, rewards

Recommended among the European legal experts for IP matters - Chambers Global и Chambers Europe, 2008-2017; Who is Who legal, 2010-2017, The Legal 500 EMEA, 2007-2015; WTR-1000 2016: The World's Leading Trademark Professionals 2016; IP Stars 2016 Managing IP: Patent Stars, Trademark Stars.

Publications, scientific works

Author of many IP publications in Russia and abroad (IP Review 2006, The World IP Review 2007, IP Value 2008 - 2011 and others) including commentaries on Russia’s key legislative acts.

Сlemens Heusch

Head of European Litigation, Nokia


Биография

Dr Clemens-August Heusch LL.M. is head of European litigation at Nokia, responsible for litigation and arbitration throughout Europe, Near East and Africa, with a strong focus on multi-national IP litigation. Since 2008 Nokia has been involved in more than 200 patent cases worldwide.

Before joining Nokia, Clemens was an attorney-at-law at the international law firm Bird & Bird LLP (2004–2008). He studied law at the Universities of Freiburg and Bonn, Germany; received an LLM degree from the University of Maastricht, Netherlands, and a doctorate from the University of Cologne, Germany. During his traineeship, he worked inter alia in the competition law team of Freshfields Bruckhaus Deringer in Cologne and Brussels, Belgium.

Listed as “Corporate IP Star” (2016); won IP inhouse team of the year (ManagingIP 2009); ‘’40 under 40” (Juve 2012); Legal 500: Corporate Counsel Germany 100 (2014).

Clemens is a registered lawyer at the Cologne Bar and is a certified IP lawyer. Fluent in German, English and French, he regularly presents and writes on a range of legal topics.

Martin Ebner-Vittinghoff

Judge, Land Court of Munich


Биография

Martin Ebner-Vittinghoff was educated at Ludwig Maximilian University Munich, King’s College Lon-don and Passau University. After practising as an attorney with Clifford Chance in 2001, he finished his doctorate degree in international trademark law in 2003 and joined the Bavarian judicial service the same year. In the following years he heard medical malpractice, banking and capital markets and legal/tax advisor malpractice cases as a judge at the Munich District Court I. From 2005 to 2007 he worked as a public prosecutor in the field of white-collar crime including the criminal infringement of intellectual property rights. Since 2009 he has been a member of a specialized IP division and since 2011 a mediator at the Munich District Court I. Martin teaches private international law to trainee lawyers at the Munich Judicial Training Centre.


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