N. ZOLOTYKH. COST OF INTELLECT

Natalya Zolotykh, General Director, “Transtechnology” Patent Attorneys, Vice President, “OPORA RUSSIA”

LEGAL FOUNDATION FOR A REGIONAL IP SYSTEM
The fundamental text defining the vector of cooperation among EAEU member states in intellectual property (IP) is the Treaty on the Eurasian Economic Union (29 May 2014), which laid the legal groundwork for a regional intellectual property system.

Under Section XXIII (Article 89) of the Treaty, member states shall cooperate in the sphere of protection and enforcement of intellectual property rights and ensure in their territories the protection and safeguarding of these rights in accordance with international law, international treaties and acts constituting the law of the Union and the legislation of the Member States.

A critical step towards harmonising the legislation of EAEU countries was the establishment of a unified list of protected IP objects, as enshrined in Paragraph 2 of Annex No. 26 to the Treaty.

The list includes:

• Copyright and related rights (works of science, literature, and art; programmes for electronic computers (computer programmes), phonograms, performances);
• Means of individualisation (trademarks and service marks; geographical indications; appellations of origin of goods);
• Patentable objects (inventions; utility models; industrial designs);
• Selective achievements;
• Other intellectual property, such as integrated circuit topologies and production secrets (know-how).

The Eurasian Economic Commission (EEC) has been tasked with strategic objectives to harmonise the legislation of member states and protect the interests of IP rights holders. Key priorities for cooperation include: fostering scientific and innovative development, facilitating IP commercialisation, creating a favourable climate for rights holders, introducing a Union-wide system for registering trademarks and appellations of origin, ensuring effective protection of rights, including in the digital environment and at customs borders.

Two core principles enshrined in the EAEU law are particularly noteworthy.
First is the regional exhaustion for trademarks (Paragraph 16, Annex No. 26), meaning that the use of a trademark in relation to goods lawfully put into civil circulation on the territory of any member state directly by the right holder of the trademark with its consent shall not be regarded as a violation. This principle fosters a single market and the free movement of branded goods.
Second is the national treatment (Article 90), which guarantees rights holders from one member state the same level of legal protection in other member states as that granted to their own nationals.

ESTABLISHING SUPRANATIONAL INSTITUTIONS
The ambitious objectives of the EAEU Treaty called for the establishment dynamically evolving supranational institutions. A vivid example of one such framework in the field of industrial property protection is the Eurasian Patent Convention (EAPC) of 9 September 1994, which established the Eurasian Patent Organisation (EAPO), granting applicants significant procedural and economic advantages. A single patent application filed with the EAPO enables them to obtain a Eurasian patent valid across all Convention members—currently Azerbaijan, Armenia, Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, and Turkmenistan.

Notably, the EAPC is an open framework, potentially ready to expand its geography. A milestone in this vein was the Protocol on the Protection of Industrial Designs of 9 September 2019, which extended the benefits of a unified regional registration procedure beyond inventions to industrial designs—protecting the appearance of goods. This measure meets the needs of modern markets, where both technical innovation and design determine a product’s competitiveness.

LEGAL PROTECTION OF TRADEMARKS AND UTILITY MODELS
On 26 April 2021, the Treaty on Trademarks, Service Marks and Appellations of Origin of the EAEU Goods, signed on 3 February 2020, entered into force, what marked an unequivocal breakthrough and a logical next step following the signing of the EAPC. It introduces new legal instruments within the Union—the “EAEU Trademark” and the “EAEU Appellation of Origin.” It also implements the “single window” approach, when applicants interact with just one national patent office to secure legal protection across the entire EAEU. Maintaining unified registers for these objects will enhance transparency and simplify third-party rights verification.

The Treaty is expected to substantially reduce time and financial costs for businesses, promote Eurasian brands, and boost the investment appeal of the common market.

The growing demand for the Eurasian patent framework among scientific, technical, and business sectors is evident in the increase in Eurasian patent applications over the past decade. For instance, while 3,000–4,000 applications were filed annually in 2015, this figure rose to over 5,500–6,000 by 2022–2023. Despite sanctions pressure, patent filings continued to grow in 2023–2024, surpassing 6,000 applications.

Securing a Eurasian patent paves the way for competitive technologies in the neighbouring markets—a prospect of growing relevance as trade flows within Eurasia continue to expand. This trend is driven both by historically close ties among Eurasian nations and by new external factors. Consequently, the IP system must align with the economic reality, which calls for further development of the Eurasian patent framework.

Currently, disputes over the use of EAEU patents and trademarks are resolved only at the national level. This decentralisation engenders legal uncertainty, raises administrative hurdles, and carries the risk of controversial court rulings across different jurisdictions, ultimately impeding the efficient circulation of IP rights across the entire Union.

Discussions are currently underway regarding the expansion of the list of IP objects under the EAPC and its regulations, extending regional legal protection to trademarks and utility models. The feasibility of such an expansion draws parallels with existing legal models in African regional agreements, such as the ARIPO (English-speaking countries) and OAPI (French-speaking countries). In the context of deepening cooperation in IP protection, broadening EAPO’s functional scope appears feasible.

Naturally, the practical implementation of this idea will require a systematic approach, accounting for diplomatic, administrative, organisational, and legal-technical factors. Furthermore, one is to also consider some of the restrictions on the exclusive rights to protected IP and means of individualisation, which have been legally formalised and embedded in the implementation of special economic measures recently adopted by Russia in response to sanctions imposed by a number of countries.

Entrepreneurs, inventors, and patent attorneys widely regard the logical evolution of the unified regional IP system within the EAEU as the introduction of a regional Eurasian utility model patent and a regional Eurasian trademark certificate.

From economic and organisational standpoints, it is crucial for both business and academia to secure not only unified legal protection for inventions and industrial designs but also a single Eurasian legal framework for utility models and trademarks. This move would reduce the costs and time required to protect these IP assets while opening new opportunities across Eurasia. Moreover, it would address longstanding challenges—exacerbated by the lack of a unified Eurasian trademark—particularly amid the rapid expansion of large e-commerce platforms such as Wildberries, Ozon, among others.

Integrating trademarks (service marks) in the list of objects to be protected at the regional level is both prudent and feasible, provided that EAPO member states reach consensus on core protection terms, particularly the applicable model of the exhaustion principle.

When considering the proposal to integrate utility models into the regional legal protection framework, close attention must be paid to the diverse national approaches among EAPO states, regarding the very definition of utility models, patentability criteria, and the terms and extensions of its legal protection. The legal framework for examining Eurasian utility model applications must also be carefully evaluated. The most preferable for adoption within the EAPO is the verification-based system currently used in Russia, rather than the former registration-based system. Russia’s experience shows that this approach effectively prevents bad faith actions by utility model rights holders and minimises abuses of IP rights.

A UNIFIED IP RIGHTS PROTECTION SYSTEM IN EAEU: CHALLENGES AND PROSPECTS

It is clear that establishing regulations directly related only to particular IP assets—such as inventions, utility models, and trademarks—is not enough. Equal attention must be given to issues of transfer and protection of these rights. Within the Eurasian economic space, disparities in the regulation of rights disposal remain significant. Even the list of permissible methods varies, let alone managing rights in digital networks, open/free licenses, smart contracts, among others. The same applies to IP enforcement. While Russia imposes stringent penalties for infringement, other Eurasian nations are weakening liability in this area, a trend that has contributed to a rise in counterfeit goods.

Despite significant progress in harmonising IP protection, the development of a unified regional enforcement system remains in its early stages. As the number of Eurasian patents and EAEU trademarks grows, so too will disputes over their validity, infringement, and use. Currently, such disputes are resolved only at the national level—in courts and administrative bodies of individual member states. This decentralisation engenders legal uncertainty, raises administrative hurdles, and carries the risk of controversial court rulings across different jurisdictions, ultimately impeding the efficient circulation of IP rights across the entire Union.

In response to these challenges, experts have proposed a number of models to establish a supranational jurisdiction. One viable approach involves creating a specialised division within the EEC’s Department for Entrepreneurial Activity Development, dedicated to resolving IP disputes. It would be staffed on a competitive basis from a pool of highly qualified professionals nominated by the member states

The division’s mandate would encompass disputes related to the filing and examination of applications for Eurasian patents and EAEU trademarks, as well as challenges to the grant or termination of legal protection. Such a structure would centralise and standardise administrative practices, ensuring coherence and efficiency in dispute settlement. Such a move would centralise and harmonise administrative practices. The division would be guided by a relevant regulatory framework, establishing clear procedural timelines, rules for submitting evidence, and procedures for engaging expert opinions.

CONCLUSION
The establishment of a regional framework for the protection and enforcement of IP within the EAEU is a challenging yet indispensable endeavor, directly impacting the competitiveness of member states. Analysis reveals significant progress in this area—a legal framework has been set, supranational bodies (such as the EAPO) operate effectively, and new assets of regional protection (including industrial designs) have been introduced. The growing interest from businesses in this regional framework only confirms its success.

However, finalising the framework calls for further action.
The promising key directions include:
1. Expanding regional protection to cover utility models and trademarks under the EAPO framework.
2. Harmonising national legislation on the protection and enforcement of IP rights.
3. Establishing a supranational jurisdictional body for dispute resolution, which is critical for overcoming fragmentation and ensuring uniform enforcement.

Implementing these measures will transform the EAEU’s IP system from a tool of harmonisation into a genuine driver of innovative development and economic cooperation, securing the Union’s strong footing in the global technology market.