ARCHIVE FOR 2015 RUSSIAN
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Ноябрь 2015
CONTENT
Interview of the issue
The Event. Comments of the Experts
Topic of the issue
A.I. Savelyev. Criteria of Actual and Constructive Knowledge as A Condition for Bringing an Online Intermediary To Responsibility The article is focused on the analysis of the existing
knowledge standards for online intermediaries, as provided
in the Article 1253.1 of the Civil Code of Russian Federation.
Having started from the comparison of foreign and
Russian case law, the author explores various criteria
used for the conclusion whether online intermediary
actually “knows” (actual knowledge) or “should have
known” (constructive knowledge) about the infringement.
The article also provides critical assessment of cases,
where the presence of “constructive knowledge” criterion
was revealed in public discussions about the infringement.
From the author’s perspective such an approach imposes
on the online intermediary an atypical obligation to monitor
the Internet information space, resulting in censorship.
Keywords:
online intermediary, ISP, hosting provider, Internet infringement
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V.V. Arkhipov. Intellectual Property in The Video Game Industry: Problems of Theory and Practice The article presents an overall review of legal problems
related to intellectual property law within the context of
video games industry and gives an analysis of the legal
regime of a video game as an object of intellectual property.
Having addressed two basic approaches (video game as a
complex object and video game as a software), the author
concludes that the classification of a video game depends
on the technical features of its design and content. This
means that video games could be either a software or a
complex object. The author assumes the possibility of
legal protection of the games which, fully or partially, do
not include classic copyrightable elements or which could
be regarded as a database.
Keywords:
intellectual rights, intellectual property, digital age, video games, multimedia product, software, database, protectability of intellectual property
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I.V. Nevzorov. Trademarks in the Digital Age: From Joust towards Total War The article denotes changes of strategies and tactics of
parties in the dispute over means of individualisation
caused by development of digital technologies. The author
formulates the concept of dispute about brand and points
out the importance of the key models of one’s competitor’s
behavior (the so-called pattern of a right holder) for
forecasting and shaping the strategy for handling a certain
dispute in the present context.
Keywords:
intellectual property, trademarks, IP disputes, pattern of a right holder, brand, digital research
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Judicial practice. Comments
Theory and practice
S.V. Mikhaylov. European and American Approaches to the Use of The Trademark under the Control of the Right Holder The article is devoted to the comparison of the European
and American theory and judicial practice approaches to the
use of a trademark under the control of the trademark owner
in light of the institute of the cancellation for non-use of the
trademark. The author examines how these approaches are
reflected in the current Russian legislation (item 2 of the
Article 1486 of the Civil Code of the Russian Federation) and
courts practice.
Keywords:
trademark, use of a trademark, use of a trademark with the consent of the trademark owner, use of a trademark under the control of the trademark holder
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A.Yu. Braginets. Gift Cards and Certificates: Practical Problems of Legal Qualification The article is devoted to particular legal problems arising in
practice in connection with the turnover of gift certificates,
cards and other similar objects. At the same time, the most
significant consideration is given to the cases associated
with the expiration of the respective instruments. The author
examines existing law enforcement practice of Russian courts
in light of the current civil legislation and regulations on
consumer rights protection. The study indicates that the most
reasonable approach presupposes qualifying a gift certificate
as a private mean of exchange considered as an independent
subject of the deal between a commercial and an acquirer of
the certificate. On the author’s opinion, the circulation of such
objects is subject to the regulations on consumer protection.
According to the results of the research, decisions of Russian
courts stay rather heterogeneous. Under such circumstances
it is inferred that particular measures must be taken in order to
unify the way in which the law applies. Finally, it is noted that
current legislation governing the turnover of private means of
exchange has a significant potential for improvement.
Keywords:
gift cards, certificates, vouchers, consumer rights protection, private means of payment
E.M. Klyuchareva. The Business Judgment Rule in Directors’ Liability Cases: Law and Practice of Delaware (USA), Germany and the Russian Federation The article elaborates on main elements and application of the
business judgment rule in directors’ liability cases in Delaware
(USA), Germany and the Russian Federation. US and German
law provides that the business judgment rule is applicable if
directors take a business decision while acting disinterestedly,
independently, with due diligence and in good faith in best
interests of the company. Though elements of Russian
equivalent of the business judgment rule — actions falling
within reasonable entrepreneurial risk are not explicitly
described in the law, they can be extracted from court practice,
especially from the presumptions stipulated in the Plenary
Resolution of the Supreme Arbitrazh Court dated 30 July
2013 No. 62 on Certain Issues of Compensation of Losses
by Members of a Legal Entity’s Management Board. They are
similar to those recognised by foreign doctrine and include
due diligence, good faith and acting in the best interests of the
company. In all the three legal systems a director can claim
business judgment rule defense only in duty of care cases as
only duty of care is considered a “best efforts undertaking” by
its legal nature. Duty of loyalty is a fundamental fiduciary duty
of a director, thus, it is a prerequisite for business judgment
rule, but not the sphere of its application as a director’s defense.
Keywords:
directors’ liability, business judgment rule, reasonable business risk, rationality, good faith, due care
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A.V. Ilyin. Individual, the Right to Public Services and Budget Expenses The article proposes a new approach to the determination
of the content of the constitutional rights to public services.
The author examines this issue in view of the interrelation of
legal forms of financial activities of the state and the need to
ensure the constitutional rights.
Keywords:
the rights to public services, budget expenses, legal status of the individual
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M.A. Mikheyenkova. Current Issues of Revision of Judicial Acts in Criminal Cases on the Basis of New or Newly Discovered Circumstances in view of the Extension of the Number of Grounds for Revision Revision of judicial acts in criminal cases (the so-called “revision
on the basis of new or newly discovered circumstances”)
in Russia has been recently extended through new legal
grounds for revision: decisions of the Constitutional Court of
the Russian Federation and of the European Court for Human
Rights. Courts started to apply this procedure more extensively
and a number of issues arose. The author starts with a brief
outline of the theoretical concept and history of revision, noting
that the newly introduced grounds differ considerably from
the old ones. This causes ambiguity in understanding and use
of this procedure. Firstly, revision is mixed up with cassation
appeal and revision procedures. Secondly, due to this fact
applicants have difficulties in exercising their right to access to
the courts when they disagree with public prosecutor’s refusal
to initiate revision proceedings. Thirdly, the Supreme Court of
the Russian Federation broadly applies revision. Applicants,
lawyers, law enforcement authorities and courts have to keep
in mind the idea and legal grounds of revision to avoid these
and other problems.
Keywords:
revision, new and newly discovered circumstances, judicial review on criminal cases
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