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Sale notices are not copyrightable

Defense of the biggest RuNet Car Sale and Car Parts Search Engine Against Competitors’ Claims

Two biggest distributors of online car dealing information simultaneously sued INTELLECT-S's client, ZAO Automobile Group, seeking an interdiction of Automobile Group's use of car sale notices which the group copied from their websites and placed in its search engine,

The interdiction would have resulted in the end of our client's online business, because the business model had been built on the collection of car sale notices from all Internet resources and their representation on one website.

The assault was launched on Automobile Group from different sides and was well coordinated: in one suit, the plaintiff alleged an infringement of its database rights and copyrights in the notices and photographs; in the other, the plaintiff alleged an infringement on the database author's copyright; and finally, in both suits, the plaintiffs alleged that the defendant had infringed on their rights to the trademarks they embedded in the photographs of the cars put on the market.

Our comment:

Consequently, our lawyers addressed four different legal issues. Firstly, they had to demonstrate that car sale notices were not protectable by copyright.

Secondly, they were to prove that that particular database, as a composite work (in fact, a compilation) was not copyrightable either, for the sheer lack of creativity in the arrangement of the sale notices by car model and make.

Thirdly, it was necessary to establish that the database was not copyrightable for at least two technical reasons:

  • the base was created before the enactment of Part Four of the Civil Code which currently protects databases, and
  • it did not take the plaintiff any substantial financial or administrative investment to create the base.

Fourthly, they were to show that there was no infringement on the plaintiff's rights in the trademarks placed on the photographs of the cars on sale, which went with the sale notices.

We attained three top objectives out of the four. The fourth goal remained unmet: we could not convince the court that using plaintiff's trademarked photographs was not illegal. When our lawyers had formulated defenses in these two actions, it was noted that any arguments asserting no infringement on the plaintiffs' trademark rights were hopeless. However, the damages the court awarded against our client in both actions were minimal, so it can also be considered a success.

In the course of the litigation, INTELLECT-S counsel protected the client's its business by demonstrating that sale notices were not copyrightable under the law and, above all, copying notices from the plaintiffs' databases and their use was not illegal.

The cases described above were the first (and so far unique) which featured the question of protection of a database author's related right in Russia.

The case was carried out by Evgeny Shestakov, Managing partner, INTELLECT-S.

Copyright, Intellectual Property, IP Disputes, Trademarks

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