If you think that you see a dog in the picture you are wrong. This is a patent. Plant varieties and animal breeds are on the periphery of intellectual property. Patents are most immediately associated with inventions, designs and utility models. Indeed, trade marks and patents are registered in thousands and laws and regulations are mainly focused on those areas.
The law enforcement system is also built basically on inanimate things. The relevant provision of Part IV of the Russian Civil Code however allows of a wider interpretation. Section 1252(4) provides that where the use of a material carrier in which the result of intellectual activity is expressed leads to infringement of the exclusive right to such result the material carrier shall be considered counterfeit. The dog is certainly material and is a carrier of intellectual property. The law provides that counterfeit products cannot be sold or disposed of otherwise. They can only be destroyed on decision of a court.
In a rare court case that took place in St Petersburg the breeder initiated an administrative court action against the buyer of a St Petersburg Orchid breed dog. The respondent argued that administrative action could not be initiated because the Code of Administrative Offences concerns patents, utility models and designs only. Hence, the case was rightly dismissed. The dog was kept by an expert during the court procedure and safely returned to the happy owner.
In this connection a question remains. The offended party could have initiated a civil action. Should that be the case the fate of the dog looks questionable. In theory, the plaintiff may demand not only reimbursement of damages but also destruction of the counterfeit products. Should the result of the breeding be a pig the solution might seem easier. However a dog... who would dare to raise a hand to such an innocent creature?
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| Vladimir Biriulin |
Gorodissky & Partners
Russia 129010, Moscow
B. Spasskaya Str
25, stroenie 3
Tel: +7 495 937 6116 / 6109
Fax: +7 495 937 6104 / 6123
pat@gorodissky.ru
www.gorodissky.com