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Rospatent: Recordal of Foreign Citizen as Individual Entrepreneur Is Not Obligatory For Being Trademark Owner

22 September 2016

On September 22. 2016, Rospatent issued several similar decisions with regard to a number of international registrations ASSOS owned by a client of Sojuzpatent LLC, by those decisions the revocation actions against these trademarks were declined and the trademarks were kept in force in Russia. The revocation actions were grounded by the fact that due to the party who filed revocation actions, these registrations were registered in abuse of article 1478 of the Civil Code, since their owner, being a citizen of Switzerland, was not registered as an individual entrepreneur. According to Russian law, an individual entrepreneur should be obligatory registered in the special Register, otherwise his/her commercial activity should be considered illegal. Still, Rospatent agreed with the position of Sojuzpatent’s client, who managed to prove that, first, national regime should be applied to determining whether a person is an individual entrepreneur or not, and that therefore in case the legislation of Switzerland allows to a person to perform commercial activities without registration as an individual entrepreneur, such person can be a trademark owner. It has been also proven that  managing a company is a kind of commercial activity carried out by a person, therefore the person had all the rights to be a trademark owner. On these considerations all revocation actions were declined. The case is also interesting by the procedural point. After a revocation action is considered on the merit and resolutive part is announced, there is still time due to the law, within which the text of the decisions should be prepared in full (two months). Procedurally a decision comes into legal force only after it is prepared in full and signed by RU PTO, since the opinion of the panel who considered the case, is some kind of recommendation to Rospatent. After the cases were considered on the merits by the panel, the person who filed these revocation actions, also filed a petition for their recall. But due to the law such a petition can be filed only before a revocation action is considered on the merits, therefore these petitions were not satisfied. The trademark owner was represented by Vladislav Ryabov, lawyer of Sojuzpatent LLC.