УДИВИТЕЛЬНЫЕ ПРИКЛЮЧЕНИЯ РЕГИСТРАЦИИ В ИНТЕЛЛЕКТУАЛЬНОМ ПРАВЕ

Abstract

The article questions the feasibility and adequacy of registration procedure and registers in the area of intellectual rights and the rights derived therefrom, taking into account informational (rather than proprietary) nature of those rights. The author analyses the competing public- and private- law concepts of intellectual rights, title-generating and title-validating effects of entries in the private and public registers of intellectual rights and comes to the conclusion that the overlap of diverse and contradictory receptions of objects of intellectual right and methods of their protection does not provide the domestic institution of registration of those rights with public reliability or logical consistency. The mandatory protectability of registered objects of intellectual rights (similar to Torrens title system) maintained by some binding judicial interpretation, along with the infringer’s inability to even prove the right of prior use in their respect, is however energetically refuted by courts on the basis of the rules on latent succession, abuse or unfair competition, and this effectively turns entries in the registers into rebuttable presumptions. Therefore, a registrar, despite extremely complex administrative procedures, may not be held anyhow responsible for their reliability.