Monitoring of the Federal Legislation dated 19.10.2006

Federal Law No. 163-FZ of October 17, 2006 on the Amendment to Article 13 of the Federal Law on the Status of Servicemen

The amendments bring the Federal Law on the status of servicemen in compliance with the Federal Law on the higher and post-graduate professional education where it pertains to the monthly mark-ups to the scientific and pedagogical personnel of military institutions of higher professional education for the position of assistant professor, professor, for the scientific grade of candidate of sciences and doctor of sciences.

The Federal Law eliminates the need to adopt in the future separate federal laws to amend Article 13 of the Federal Law on the status of servicemen if there are changes in Item 5 of Article 30 of the Federal Law on the higher and post-graduate professional education.

The Federal Law is entered into force from November 1, 2006.

Federal Law No. 162-FZ of October 17, 2006 on the Amendment to Article 11 of the Federal Law on the Burying and Obsequies

The amendments refine the norm of Subitem 4 of Item 3 of Article 11 of the Federal Law on the burying and obsequies pertaining to guarantees for the veterans of combat actions – servicemen having participated directly in antiterrorist operations on the territory of the Chechen Republic and adjacent territories of the Russian Federation.

The right for the state guarantees to be buried at the expense of the federal body of executive power in charge of defence, other federal bodies of executive power is specified in Article 24 of the Federal Law on the veterans. Meanwhile, Subitem 4 of Item 3 of Article 11 of the Federal Law on the burying and obsequies defined such guarantees for only dead veterans having taken part in combat actions on the territory of other states regardless of the total length of the military service (service), whereas from January 1, 2004, the Federal Law No. 158-FZ of November 27, 2002 provided to servicemen having taken part in the armed conflict and antiterrorist operations in the Chechen Republic and on adjacent territories of the Russian Federation measures of social support of veterans of combat actions.

Decision of the Presidium of the Higher Arbitration Court of the Russian Federation No. 3691/06 of July 18, 2006

The Presidium of the Higher Arbitration Court of the Russian Federation has revoked available judicial acts having left unsatisfied the demand of Nivea trademark owners to invalidate the decision of the Chamber of Patent Disputes having refused to satisfy the applicant objection against registration of the Livia trademark. The courts proceeded from absence of proof of similarity of disputed trademarks to the level of confusion, since they do not have the necessary originality to identify the product of a particular producer.

The Presidium explained that if there is a dispute between two similar but not identical trademarks, the danger of confusion of the first trademark with the later one must be established in court. The danger of confusion depends, first, on the distinguishing capacity of the trademark with an earlier priority, second, on the similarity of the trademarks under examination, third, on the assessment of the nature of commodities and services designated with the trademarks.

The lower-instance courts did not carry out a complex analysis of the similarity of the trademarks taking into account not only their visual and graphic similarity, but also the distinguishing capacity, as well as did not investigate the issue of similarity of commodities suggested under the trademarks under dispute. In the course of comparison of the graphic and visual similarity of trademarks, the courts failed to take account of the main rule requiring that the conclusion be made on the perception of the trademark as a whole (general impression) rather than individual elements. They also ignored that the danger of confusion, rather than the actual confusion of trademarks in the eyes of the consumer, is already enough to recognise the similarity of trademarks. The presence of the danger of confusion is evident from results of sociological polls.

Moreover, one should also assess the actions of the owners of the Livia trademark, who are a direct competitor of the applicant and who registered the trademark later, from the viewpoint of inadmissibility of unfair use of economic advantages obtained as a result of promotion of their trademarks by the company. The Presidium emphasised that the case circumstances show that the competitor actions may be qualified as a form of unfair competition. The Patent Chamber and the courts did not investigate the similarity of commodities and services protected by the competing trademarks with the motivation that the absence of similarity of the compared trademarks eliminates the need to analyse the similarity of commodities and services. However, assessment of similarity of commodities and services in the given category of disputes is obligatory since it identifies the presence or absence of danger of confusion of similar trademarks. The Presidium recognised the challenged decision of the Chamber of Patent Disputes invalid.

Order of the Ministry of Public Health and Social Development of the Russian Federation No. 666 of September 18, 2006 on the Amendment to the Procedure of Providing of a Set of Social Services to Individual Categories of Citizens Endorsed by the Order of the Ministry of Public Health and Social Development of the Russian Federation No. 328 of December 29, 2004

Changes the procedure of control of fulfilment by pharmacy organisations of the duty to provide to apothecary institutions medicines released free of charge to preference categories of citizens.

Pharmacy organisations must provide to apothecary institutions medicines according to requests endorsed by the Federal Fund of Obligatory Medical Insurance.

Control of fulfilment by pharmacy organisations of their duties is vested in the Federal Service of Enforcement in the Sphere of Public Health and Social Development. Earlier, the authority of control in the given sphere was also vested in the Federal Fund of Obligatory Medical Insurance.

Registered in the Ministry of Justice of the Russian Federation on October 13, 2006. Reg. No. 8385.

Letter of the Federal Service of Labour and Employment No. 1688-6-1 of October 10, 2006

Explains the position of the Federal Service of Labour and Employment on the issue of compliance with the norms of the labour legislation of fixing the earnings in the labour contracts in the rouble equivalent of the amount of foreign currency.

According to Article 131 of the Labour Code, the paying out of earnings is made in the monetary form in the currency of the Russian Federation (roubles). The paying out of earnings on the territory of the Russian Federation in foreign currencies is not envisaged in the actual labour legislation. Thus, the earnings in the labour contracts with employees must be indicated in roubles. The fixing of earnings in the rouble equivalent of the amount of foreign currency in the labour contracts is not fully in compliance with the labour legislation and may be regarded as a violation of the labour legislation.