Иммунитет государства и охрана интеллектуальной и промышленной собственности

Abstract

The article "The Immunity of the State and the Protection of Intellectual and Industrial Property Rights" is devoted to one of several exceptions to the principle of the foreign state immunity: the exception which limits the foreign state immunity in the investigations regarding intellectual and industrial property rights. This exception is interesting in the light of the topical issue of intellectual and industrial property rights protection in the world of rapidly developing technologies, especially because this exception is given little attention to in special literature. The main reasons for exercising jurisdiction in the investigations concerned with intellectual and industrial property are: every state has a certain system aimed at intellectual and industrial property rights protection. In case of granting to another state the immunity from court examinations aimed at disputes settlement concerning patents, copyright or trade marks, a probability of deflection of the mechanism of legal protection of the lawful interests of citizens can be very high. This mechanism or the protection system of different categories of rights for intellectual and industrial property is valid only in case if the violation of the rights registered in the state of the court, took place on the territory of the state. That is why the second reason for jurisdiction enforcement is a territorial connection. If an assumed violation of intellectual and industrial property rights by a foreign state took place beyond the territory of the state of the court there is no ground for jurisdiction enforcement regarding the foreign state. The exception analyzed can be applied in court investigations regarding establishing the rights of the foreign state concerning patent, trade mark, copyright and other objects of intellectual and industrial property, which fall under legal protection in the state of the court. Besides, the given exception is valid in court examinations regarding violation or non-observance of the intellectual property rights of the foreign state either during commercial activities or the activities of public nature. During the development of the Convention draft in the International Law Commission the representatives of a number of European States said that the introduction of the exception limiting the foreign state immunity in the investigations concerning the intellectual and industrial property rights in the draft of the International Law Commission will have a negative effect on their economic grouth. The author believes that the introduction of the given exception in the draft will not bring about these circumstances because it does not touch on the competence of the foreign state what concerns selection and implementation of the national policy by the state within its territory regarding intellectual and industrial property protection. The author concludes that the given exception from the immunity principle of the foreign state is in compliance with the interests of states which strive to create an efficient system of protection of intellectual and industrial property rights and protect the interests of the owners of intellectual and industrial property rights and not affecting the sovereignty of the foreign state. This exception will allow every state to have its own internal policy on intellectual and industrial property and simultaneously, to observe and respect the laws on intellectual and industrial property protection which exist in another state where the activities of the given state are carried out.