Service - Aspirin
Force of a patent right in Russia while underestimate. Meanwhile begun in January of this year in Appeal chamber of Rospatent of trial concerning a trade mark “ Aspirin “ German firm Bayer have shown, for the businessman the advantages received by means of patent protection can be how much serious: Bayer has already won the first round of fight for the “ Aspirin “ without participating at all in trials.
thanks to exclusive rights to this trade mark the German firm can quite force out from the Russian market of other manufacturers of aspirin. So, to the large Russian importer of medicines - to the state enterprise “ Farmimeks “ - this year it was necessary to refuse purchases of aspirin of manufacture of firms of the USA and Canada. (Experts to whom anything is not alien human, should notice that from the narrow-minded point of view such decision not so - that is timely: the flu behaves violently - and suddenly aspirin will not suffice?)
to avoid mess, further we will adhere to following designations: “ Aspirin “ - firm Bayer trade mark, aspirin - the preparation name atsetilsalitsilovoj acids.
It seems that numerous manufacturers and sellers of preparations atsetilsalitsilovoj acids (more known as aspirin) will soon occupy turn in Appeal chamber of Rospatent with intention to protest registration in Russia of a trade mark “ Aspirin “ firms Bayer. Last year objections have already been submitted to Appeal chamber from the largest Russian importer farmproduktsii - the state enterprise “ Farmimeks “ (the former Main chemist`s management), and also from the French pharmaceutical firm Laboratoires UPSA.
the Reason of discontent of the Russian importer and the French manufacturer - registration on September, 15th, 1992 in the Russian patent department of five trade marks of firm Bayer containing a word “ Aspirin “ in a Latin and Cyrillic writing. Thanks to this registration firm Bayer has received an exclusive right to word use “ aspirin “ in Russia for a designation of medicines. From this point on all other manufacturers of preparations under the name “ Aspirin “ became infringers of rights Bayer and should change the name of the preparations. The firms selling " appeared infringers also; Aspirin “ other manufacturers.
at once after registration of the signs in Rospatent firm Bayer has addressed to Minister of Health Edward Nechaevu with the request “ to protect a trade mark ` Aspirin ` from an unfair competition in Russia “. As a result of this reference inspection on control over quality of medical products and iatrotechnics of Ministry of Health of Russia has suggested not to bring more in the register of the medical products resolved to application in Russia, preparations under the name “ Aspirin “ Other manufacturers. New preparations it was planned to bring in the register under the name “ atsetilsalitsilovaja acid “. It was not denied as well re-registration possibility under any other name of preparations of other manufacturers already brought in the register under the name “ Aspirin “.
the Correspondent has tried to find out, how in practice the re-registration aspirinov should be carried out. It has appeared that Management on control over quality of medical products of Ministry of Health of the Russian Federation has faced this problem for the first time, and the established procedure here does not exist. According to employees of management, the re-registration should be made under the statement of the firm which have registered earlier in Russia the preparation. However, on available for the information, still any firm - the supplier of aspirin has not expressed desire to rename the preparation.
It seemed, firm Bayer with which did not interfere the Rospatent which has registered a sign “ Aspirin “ Ministry of Health which has recognised use of this sign by others farmproizvoditeljami “ incorrect “ it was necessary to punish infringers only. However Bayer yet has not brought any actions concerning infringement of its exclusive rights to a trade mark “ Aspirin “ though the Russian law on trade marks allows it to make it. Similar humility in the presence of legitimate rights seems obscure. The patent attorney of firm Valery Kalinovsky has answered a question of the correspondent that “ sooner or later manufacturers should reckon with rights Bayer “. From other sources close to firm, we knew that it “ it is not ready yet “ to judicial proceedings with the competitors.
passivity of German firm speaks not only and not so much “ philosophical “ the relation to a competition. In detail having familiarised with arguments of conflicting parties and with centenary history of the well-known medicine and a trade mark “ Aspirin “ we have found to today`s trial in Appeal chamber a curious explanation.
there is more than aspirin, good and different
It is remarkable that as the first against registration of signs Bayer the Russian importer " has acted; Farmimeks “ (through this state enterprise to Russia arrives about 85 % of the medicines bought on the state import).
“ Farmimeks “ paid attention of Appeal chamber that the Rospatent decision will have negative consequences for the Russian market of medicines. Priority Bayer will limit receipts of import aspirin, and it is possible to find in the world not one ten the firms offering atsetilsalitsilovuju acid under mark “ Aspirin “. In the Russian market from them are presented Pierre Fabre, Laboratoires UPSA, York Farmaceutical, M &A Pharmachem, Natco. And aspirin offered by them is much cheaper, rather than preparation Bayer.
“ In the market should be and expensive, for example, bajerovsky, and cheap aspirin, - the general director ` has noted in conversation with the correspondent Farmimeksa ` Alexander Apazov. - trade mark Registration ` Aspirin ` assumes refusal of our association of transactions with many manufacturers of cheap soluble aspirin that, in turn, will promote only to an establishment of monopoly prices of production Bayer “.
Other, not less important argument “ Farmimeksa “ there was that the name “ aspirin “ is not capable to represent itself as a trade mark because of its long use as patrimonial concept. Thus “ Farmimeks “ did not object to trade mark registration “ Aspirin - Bayer “ as this combined designation gave to firm Bayer an exclusive right only on the name of the, “ bajerovskogo “ aspirin.
however Appeal chamber to arguments “ Farmimeksa “ has not listened, and on January, 12th on this objection the negative decision - because of its insufficient argumentirovannosti has been passed. Without wishing to be got involved in judicial disputes with firm Bayer, “ Farmimeks “ while has refused purchases of cheap aspirin from the USA and Canada. According to experts, this step will exemplify some kind of smaller importers - hardly who from them will dare at deliveries of a preparation which on the lawful bases can be withdrawn from a turn both at customs, and in trade. The list of possible troubles will be continued by penalties and payments in favour of Bayer which sum depends on in the firm how many will estimate the mental cruelty and how much judicial bodies will agree with this figure.
a difficult problem for experts of Rospatent
trade mark Registration “ Aspirin “ in the Russian patent department has received inconsistent responses in circles patentovedov. Opinions were divided: one are inclined to consider this registration by a Rospatent error as aspirin is the popular patrimonial name, the second, on the contrary, welcome this step, considering “ Aspirin “ the well-known sign on firm Bayer deserving patent protection in Russia.
supporters of the second point of view - experts of Institute of patent expert examination at Rospatent (NIIGPE) - refer to the Parisian convention which Russia has joined in 1965. According to the convention, well-known trade marks can be protected in the countries of the Convention and without registration if it does not contradict the national legislation. Otherwise the right protection is received only by the registered sign. Thus, experts NIIGPE, " consider; Aspirin “ it is well-known, but for its right protection in Russia registration is necessary. As has made Rospatent.
According to experts, here there is a substitution of concepts: for common knowledge of a sign “ Aspirin “ popularity of the preparation with the same name stands out. And absence in the Russian law on trade marks of criteria of common knowledge of a sign “ does not relieve from responsibility “. In world practice patent department itself develops procedure of a recognition of a sign well-known (the Rospatent of it yet has not made), considering in each specific case features of a situation. And so, in the majority of the European countries a trade mark “ Aspirin “ it is not registered. And it testifies at all to its common knowledge as it would be possible to assume proceeding from the Parisian convention, - in the majority of these countries is accepted, as well as in Russia, registration system. That is, if aspirin was considered as a well-known sign, it should be protected by means of registration. However in these countries consider that the name “ Aspirin “ Has ceased to correspond to requirements of patent protection: metamorphoses which were worried by this sign about the century history, have led to that it has entered into the general use and has ceased to be property Bayer.
That can happen for 100 years, or the aspirin Biography
It is impossible to tell that Bayer unfairly connects itself with aspirin. This firm has suggested to use for the first time as a medicine atsetilsalitsilovuju acid - the substance before known only to chemists. In 1899 a new medicine under the patented name “ Aspirin “ has arrived on the market.
it was required to a new medicine to a few time to become popular. Already at the beginning of the century “ Aspirin “ it was so known that became a synonym of a medicine for cold and a headache. But for a trade mark it meant degeneration in which result it became “ Property of the public “ instead of the property of the owner. In this case the sign loses patent protection in a judicial order under the statement of any interested person. This mournful way there have passed such trade marks known in due time, as “ Vaseline “ “ the Record player “ “ the Escalator “ and “ the Thermos “.
In 20 - 30 - e years in Europe were still possible disputes on that, has degenerated “ Aspirin “ in the patrimonial name or not. Therefore in 1924 when in Germany attempt to cancel sign registration has been undertaken, “ Aspirin “ has resisted - but, alas, only on the historical native land. In many countries of Europe registration “ Aspirin “ has already been cancelled; during the present time as it was already marked, aspirin is considered the patrimonial name, instead of a trade mark in all industrially developed countries making this preparation, except for Germany. With such relation to the well-known sign firm Bayer was always not consent, but it became especially difficult to defend to it the rights after 1945.
the matter is that experts of firm Bayer, with 1925 a part of notorious German chemical I. G. Farbenindustrie AG, the first have invented and have started to make nervously - paralytic poison gases - a basis of a modern arsenal of the chemical weapon. When in 1945 allies I. G. Farbenindustrie AG, to them have got as trophies not only the production technology of new poison gases, but also pride of pharmaceutical department of firm - to the production technology especially pure atsetilsalitsilovoj acids. And so, till now Bayer did not undertake any attempts to defend the rights to the property requisitioned in favour of the American firms on “ to Sarin “ (in its USA name GB) or “ to the Cyclone - “ on “ to Aspirin “.
the Destiny of a sign in Russia is not less dramatic. In the Russian empire original words or separate phrases were not protected as trade marks, and have been extended and protected “ family “ type signs “ Petrovi syn “. Meanwhile as an exception - under the special government directive - the right protection was given to verbal trade marks of German firms. On such procedure also protected the sign in Russia Bayer. Thus the firm blocked to the European competitors access on the Russian market.
after 1917 all foreign trade marks have been cancelled, and it was offered to their owners to register again signs already in the Soviet Russia. However when in 1925, after the conclusion Soviet - the German economic agreement, many German firms have addressed with the petition for right protection granting to their trade marks, Bayer, according to Committee on affairs of inventions (so the Rospatent in 30 was called - e years), has not entered into their number. Besides, under the Soviet legislation, “ the signs which have entered into the general use as a designation of the goods of a known sort “ were excluded from - under protection.
subsequently Bayer some times unsuccessfully tried to register the sign in the USSR. And now, when desired registration of a sign has occurred, its further destiny all the same depends on behaviour of officials of the Russian patent department.
so all - taki a sign or a word?
In general - that over Appeal chamber of Rospatent the law has founded Supreme patent court, and only its decision is definitive. However till now anybody yet did not manage to appeal against against the decision of Appeal chamber as Supreme patent court simply it is not created yet. Therefore the ending “ aspirinovoj collisions “ today it is real can put only the Rospatent decision - if he recognises the wrongfulness. However compel it for it only unshakable arguments of the objecting party can.
so, patent believed Laboratoires UPSA Evgenie Arievich intends to defend in Appeal chamber the thesis about sign degeneration “ Aspirin “ in a patrimonial designation. As proof g - n Arievich intends to present it results of specially spent sociological poll of inhabitants of Moscow and Moscow Region, whether in which course the name " was found out, communicates; Aspirin “ with any concrete manufacturer. Anybody from 250 interrogated could not remember the firm name - the manufacturer of aspirin, and only 13,6 % named among the countries - manufacturers of aspirin Germany. However in practice of Appeal chamber it will be the first trial where as the proof results of poll of the population will be resulted, therefore it is possible to assume that experts NIIGPE will try to deny its results as in Rospatent requirements to proofs till now are not developed.
experts NIIGPE, in turn, will defend common knowledge of a trade mark “ Aspirin “. And it would mean that in the Russian market all know “ Aspirin “ as firm Bayer preparation. It is unessential to be the expert to notice that bajerovsky aspirin has started to be on sale only two years ago, and that only in the Moscow drugstores, and it serves as its proof maloizvestnosti in the Russian market more likely.
as it will be difficult to recognise to Appeal chamber sign degeneration “ Aspirin “ all modern dictionaries of Russian and numerous medical directories which do not contain any references on Bayer and in which about " testify to it; aspirin “ it is told only as about a medicine for a headache. Thus a word “ aspirin “ everywhere it is resulted as more widespread synonym of a preparation “ atsetilsalitsilovaja acid “.
to find out, how much dictionaries reflect a real picture of the professional use of the term “ aspirin “ the correspondent has addressed in publishing house “ the Medical encyclopaedia “.
“ This word has entered into Russian, in Russian life and today cannot be the property of the separate manufacturer, - general director NPO ` the Medical encyclopaedia `, managing chair of history of medicine and cultural science of the Moscow medical academy of Setchenov professor Andrey Stochik has told in conversation with the correspondent. - At registration of this sign it was not accepted in attention Russian current state, opinion of the professionals using it in medical lexicon. “
thus, “ obrusev “ aspirin has ceased to be property Bayer. However, considerably promoted it and absence of tradition of observance of the rights of owners of trade marks, after all and today in the Russian help medical literature original names of medicines are resulted not as trade marks, and is simple as synonyms - want so name, you want edak.
Absence in Russia other tradition - permissions of patent disputes - can, according to experts, to complicate in general - that simple business for patent department: having taken into consideration changed position of a sign “ Aspirin “ to satisfy appeals of importers and manufacturers. As in the new patent legislation this procedure became possible is can be, for example, disklamatsija a sign: the word loses patent protection and any more is not a sole property of one firm. Whether
the Rospatent will want to use such possibility, will show trial in Appeal chamber concerning objection Laboratoires UPSA against registration “ Aspirin “ which date of consideration it is not declared yet.
NATALIA - HOROSHAVINA, ALEXANDER - OSOKIN