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Eurasian Economic Union – patents, trademarks and customs
The members of the EAEU are Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia.
General information about the EAEU
The Eurasian Economic Union (EAEU) is an economic union of states located in Central and Northern Asia and Eastern Europe. The Treaty on the Eurasian Economic Union was signed on 29 May 2014 by the leaders of Belarus, Kazakhstan and Russia, and came into force on 1 January 2015. Treaties aiming for Armenia’s and Kyrgyzstan’s accession to the Eurasian Economic Union were signed on 9 October and 23 December 2014, respectively. Armenia’s accession treaty came into force on 2 January 2015. Kyrgyzstan’s accession treaty came into effect on 6 August 2015.
The Customs Union of Belarus, Kazakhstan and Russia (now the Eurasian Customs Union) came into existence on 1 January 2010. The Customs Union’s priorities were the elimination of intra-bloc tariffs, establishing a common external tariff policy and the elimination of non-tariff barriers. It was launched as a first step towards forming a broader single market inspired by the European Union, with the objective of forming an alliance between former Soviet states. The member states planned to continue with economic integration and were set to remove all customs borders between each other after July 2011.
On 1 January 2012, the three states established the Eurasian Economic Space which ensures effective functioning of a single market for goods, services, capital and labor, and establishes coherent industrial, transport, energy and agricultural policies. The agreement included a roadmap for future integration and established the Eurasian Economic Commission (modelled on the European Commission). The Eurasian Economic Commission serves as the regulatory agency for the Eurasian Customs Union, the Single Economic Space and the Eurasian Economic Union.
Currently, independent applications must be filed in each country. However, the plan is that there will be a single application covering all the countries that belong to the Eurasian Economic Union.
- Eurasian Economic Union (created 2015)
- “Treaty on the Eurasian Economic Union (Protocol for the Protection and Enforcement of Intellectual Property Rights”
- Current member states: Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia
- Agreement signed
- Still a few practical issues to be decided
- Starts operating after 2020 when instructions, rules for the implementation of the overall process and technological documents will have been adopted
- Similar system to Madrid Agreement / Protocol
- No unified office for EAEU trademarks
- Joint co-operation of offices of all EAEU countries
- Unified register of EAEU trademarks
- “Simpler, faster and cheaper registration procedure”
- “One application, one registration”
- Applications must be filed in the Russian language with a PTO of any EAEU country
- Foreign applicants must appoint a representative among trademark attorneys of the EAEU countries
- Receiving office conducts formal examination
- Substantive examination is conducted by national offices of the member states
- Examination results of national offices are sent to the receiving authority, which accepts the registration
- Time limit for examination is 6 months
The EAEU does not issue patents and there is no EAEU patent as such. Patent protection on the territory of the EAEU may be obtained either via the national patent systems of each EAEU member state or the Eurasian regional patent system.
When using the national systems, separate national patent applications should be filed and prosecuted with the national patent offices. The Eurasian patent system provides a uniform application procedure for physical and legal persons to protect their inventions on the basis of a single Eurasian patent. The eight member states of the Eurasian Patent Convention are: Armenia, Azerbaijan, Belarus, Kyrgyzstan, Kazakhstan, Russia, Tajikistan and Turkmenistan. The executive body of the Eurasian system is the Eurasian Patent Office (EAPO), located in Moscow. The language of proceedings is Russian.
It is not necessary to designate particular Eurasian member states on filing the Eurasian application. Instead, the applicant can choose in which Eurasian member states the granted patent is kept in force by paying the corresponding annuities though the EAPO website after the patent grant. There is no separate validation phase and no validation fees. A granted Eurasian patent is issued in Russian and it does not need to be translated in order to be in force in any of the Eurasian member states. Enforcement of a Eurasian patent is obtained through national courts of the member states.
Currently, it is not possible to register IP rights at the Eurasian Customs Union, but a separate application must be filed in each country. There are plans to create a unified customs register for registering IP rights at the Customs Union.
Although the introduction of the IP register of the Eurasian Customs Union is already established, the member states have so far failed to implement it in practice. Therefore, trademarks still have to be separately registered in all national customs registers of the Eurasian Customs Union member states, including Russia.
Registration of a trademark at the Russian customs is an efficient tool to fight counterfeiting. The register of IP rights is an open database, which is regularly updated. The import or export of counterfeit products is immediately blocked by the customs authorities, which stimulates the growth of legal sales.
The customs procedures are very clear: when goods that have signs of counterfeiting are detected (for example, import by an unauthorised importer), customs authorities suspend the clearance of goods for ten business days and contact the trademark owner.
During this period the trademark owner has an opportunity to get information on the circumstances of the import of goods and the importer, obtain a description and photographs of the goods, and even get a sample. If the owner confirms that the suspended goods are counterfeited, the customs begins an administrative investigation against the importer.
Inclusion of trademarks in the customs register helps not only to effectively identify goods illegally imported to Russia but also to reveal counterfeiting in the domestic market. This occurs during interaction between customs and other law enforcement agencies.
In 2019, the customs register contained 5,141 IP objects, and that same year the Russian customs revealed 11 million counterfeited goods. The most commonly counterfeited goods are clothing, games and toys, and shoes. A recent trend in Russia is the growth of counterfeit jewellery products.
Instagram is a common marketplace for selling the counterfeit goods and usually the trademarks are not included in the customs register. Geographically, the countries from which the counterfeit goods are imported cover a wide area.
At first glance the procedure of recordal of trademarks in the customs register is quite simple. The minimum list of documents to be attached to the application for customs recordal in Russia includes:
- A power of attorney
- An extract from the company register
- A detailed description of the IP object and original goods
- Samples or images of original goods
- A written obligation of the applicant to cover all expenses of customs authorities and damages caused to the owner of suspended goods in case the infringement will not be confirmed and
- A copy of a civil liability insurance to cover damages
All documents must be translated into Russian. The translations and copies of the documents must be notarised.
There are no official fees. The trademark owner must sign an obligation to compensate for losses to the right owner/declarant/recipient of the goods. In addition, the trademark owner is entitled to provide an insurance agreement. The amount of insurance should be no less than RUB 300,000 (USD 3,759). (May 2020)
Despite the simplicity of the process, trademark owners usually face difficulties when applying to the customs.
According to regulations, the customs should consider the request within 30 working days. In practice it usually takes three to four months. There are no clear rules on how the documents should be executed, and thus repeated additional enquiries from the customs are possible.
The timeframe to provide a response to a customs enquiry is one month. If the trademark owner does not provide a response, the application may be denied. Applicants should be ready to provide clarification and additional information to the customs very quickly.
The biggest challenge, especially for foreign companies, is that the Russian customs requires documents confirming the possible violation of IP rights in connection with the importation of counterfeit products as well as photographs or samples of the counterfeit goods.
Trademark owners should collect as much information as possible about the counterfeit. If the company does not have evidence of the illegal import into Russia of the products labelled with its trademark, the trademark will not be registered in the customs register.
Including a trademark in the customs register in Russia helps to prevent trademark violations and illegal sales, but trademark owners should be ready to face difficulties during the registration process.