On registration of foreign exchange agreements by residents on the web portal of the National Bank

In the article Creating Contractual Work Regulations, we discussed the principles of organizing contractual work in an organization and the risks that arise when working with documents. What stages does a contract go through during preparation, who should coordinate the work and what should you pay attention to when checking counterparties - read in the continuation of the article, prepared on the basis of a practical course by a teacher of the Russian School of Management, lawyer, trainer-consultant in the field of law Yulia Mezhnikova.

What can be sold under a license agreement?

The subject of the license agreement is the exclusive rights to intellectual property, and not the intellectual property itself in embodied form. Moral rights, such as the right to authorship of an invention, are also not transferred.

Such RIA objects can be:

• Objects of patent law: invention;
• utility model;
• industrial model;
• selection achievements.

Appellations of origin of goods and geographical indications cannot be the subject of a contract, since they are closely related to the characteristics of the place of production of goods. When transferring rights to them, the consumer may be misled. Transactions on commercial designations and trade secrets, which are not subject to registration with Rospatent, take place within the framework of a commercial concession (franchising).

There is also an exception for trademarks. If a designation is registered as a collective mark, then rights to it cannot be transferred, since it is used by several enterprises at the same time.

The text of the agreement must clearly define the subject of the agreement - the type of intellectual property, its name, registration number in Rospatent, a detailed description of the utility model, invention, industrial design, trademark. Technical diagrams, drawings, and other images of the subject of the transaction may be attached to the contract. If in the future the question of non-approval arises, the contract may be recognized as not concluded.

Sample contract log book

If you need to create a log of agreements that you have never done before, look at the sample document and read the explanations to it. With their help, you will be able to create the required form without much effort.

1. First, write the name of the organization, below indicate the person who is responsible for maintaining the journal (his position, surname, first name, patronymic), as well as the date the journal began (after its completion, it would also be useful to make an appropriate note).
2. Next, move on to the main part, which, as mentioned above, should be presented in the form of a table. The number of columns in it can be arbitrary, but there must be columns about the contract number, the date of its conclusion, the type of document (contract or additional agreement to it), the name of the counterparty, his address. The form also needs to include information about who exactly within the organization concluded and maintains the agreement, the number of copies, and the storage location of each such document (it can be centralized or the agreements can be stored in different departments).
3. If you consider it necessary, you can supplement the form with other information that is relevant specifically to your situation. For example, about the summary content, the amount of the contract, the period of its validity, the full number of appendices to the contract, a column for the signature of the responsible employee, notes, etc.

Duration of registration with Rospatent

The period for consideration of the application and registration of the agreement with the patent office is 45 working days from the date of receipt of the documents. In practice, it often takes up to 3-4 months due to the need to make changes and provide additional information. In these cases, the applicant is sent a notice, the requirements of which must be fulfilled within 2 months.

Changes to the agreement are also made upon application and after payment of the state fee, the amount of which is 3,300 rubles.

A license is a permission to carry out actions with intellectual property, therefore it requires detailed agreement on all essential conditions between the parties to the transaction. Their absence prevents registration of the agreement with Rospatent. Incorrect wording and the lack of clear instructions about the scope of transferred rights to inventions, trademarks, industrial designs and utility models can subsequently lead to the agreement being invalidated and entail not only material losses, but also undermine the reputation of the manufactured product in the eyes of consumers. The specialists of our patent office provide a full range of services - from consulting to turnkey license registration in the shortest possible time.

Nuances and pitfalls

Usually there are no problems with registering a lease. However, difficulties may arise if there are violations in the cadastral and registration documentation for the property. In this case, the landlord should correct the situation and only then enter into an agreement with the tenant.

Problems may also arise if registration documents are submitted too late. Although the tenant may actually use the premises, he will not be able to sublease it or require a renegotiation of the contract with him.

Registration of long-term leases is a statutory obligation. And although there are no sanctions for violating it, without registration the parties may have problems, even if they can be solved.

What contracts are recorded in the journal?

All contracts concluded by employees of the organization can be entered into the journal. However, if the enterprise is large enough, then each of its structural divisions may have its own magazine form, and magazines can also be divided by type of agreement (for example, separate ones - by supply agreements, advertising agreements, legal agreements, etc.). This approach allows you to correctly systematize accounting and avoid confusion.

The journal can be kept for a certain period of time (month, quarter, half-year, year), or for an indefinite period - it all depends on what rule regarding this parameter is enshrined in the company’s accounting policy.

Magazine design, features

There are no special requirements for the design of the contract registration journal, as well as for its content, which means that it can be kept either in handwritten or electronic form. If the form is maintained electronically, it is not necessary to print it, except in cases where it contains a column for the signatures of employees who have concluded a particular transaction.

The journal can be of very different sizes, but usually it has not one, but many pages (in actively operating organizations, the number of concluded contracts can be calculated not only in tens, but even in hundreds). If, for example, a notebook is not used as a journal, but ordinary A4 sheets are taken, then they should be numbered in order and then stitched with a strong thread (you can also use a stapler, but it does not always guarantee reliable fastening), noting the number of pages on the last page and putting the date and signature of the responsible employee.

Section 2. General provisions

2.1. The Agreement defines the terms of use of the Information, the rights and obligations of the User arising when gaining access to the Information and Information services through the Site.

The composition of the Information available on the Website is determined by the Company at its sole discretion, taking into account the requirements of laws, regulations of the Bank of Russia and other regulations of the Russian Federation.

The procedure and conditions for obtaining free access to Information through the Site are determined by the Agreement. The procedure and conditions for access to Information services and use of Information are determined by the Agreement, as well as agreements concluded between the Company and Users.

2.2. The agreement is a public offer in accordance with Art. 437 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). The Agreement is published on the Site and comes into force from the moment of publication.

The user who has started using the Site is considered to have confirmed his agreement with the terms of the Agreement in the manner prescribed by clause 3 of Art. 434 Civil Code of the Russian Federation.

2.3 In accordance with the legislation of the Russian Federation and concluded agreements, the Company is the copyright holder of the Information, including, but not limited to, Exchange information, Indices and other Derivative information posted on the Site.

Parties to the license agreement

A license agreement cannot be unilateral. Subjects of the agreement, according to Art. 420 of the Civil Code of the Russian Federation must be at least two. The initiative to conclude an agreement can come from both the licensee and the copyright holder.

If there are several owners of intellectual property, then they can draw up an agreement on the joint use of licensing rights. Those citizens who are not engaged in entrepreneurial activities can be licensors only for objects of patent law - inventions, utility models, industrial designs, selection achievements. Foreign citizens or legal entities have the right to act both as licensors and licensees.

Documents required for license registration

In order to register a license agreement, you need to prepare and submit to the patent office a package of documents, including:

1. Statement in the established form (1 copy) relating to one contract. If there are several copyright holders, then the application must be submitted on behalf of all owners.
2. Original contract in 2 copies.
3. A notarized extract from the agreement, if the agreement itself is not provided (2 copies). The extract must contain the main terms of the transaction, which are published in the registers.
4. A copy of the agreement or an extract from it (1 copy).
5. A payment document confirming the fact of payment of the state fee for registration (their sizes for various RIA objects are indicated below).
6. Consent to the processing of personal data for all parties to the agreement.
7. Power of attorney, if the application is submitted through a representative (patent attorney).
8. Written consent of the licensor if a sublicense agreement is registered.
9. Court decision if a compulsory license is granted.
10. Notarized translation of documents into Russian (for foreign applicants). It is also necessary to take into account that the interaction of non-residents of Russia with the Federal State Budgetary Institution "FIPS" should be carried out through patent attorneys (with the exception of some CIS countries with which agreements on cooperation in the field of patenting have been concluded).

Forms and examples of their completion are published on the website of the Federal State Budgetary Institution “FIPS”.

Is it necessary to register in the state register and when is it mandatory?

Mandatory registration is provided for in Part 2 of Art. 609 and part 2 of Art. 651 Civil Code of the Russian Federation. They stipulate that all real estate lease agreements (both buildings and premises), which indicate a validity period equal to or exceeding a calendar year, are subject to mandatory state registration.

The procedure itself is described in detail in Art. 51 Federal Law “On State Registration of Real Estate” No. 218-FZ of 2015. No registration required:

1. Short-term lease agreements - by virtue of the same part 2 of Art. 651 Civil Code of the Russian Federation. This position is confirmed by information letter of the Supreme Arbitration Court of the Russian Federation No. 53 of 2000.
2. Indefinite. Although they may actually last a year or more, since the period is not expressly specified in them, registration requirements do not apply to them.

If a lease agreement has been concluded for a period of one year or more, but registration has not been made, the consequences will be as follows:

• Since the agreement comes into force from the moment of registration, it will be considered not concluded. This may prevent the party whose rights are violated from seeking redress in court.
• The tenant will not have a right of first refusal to renegotiate the contract after the lease has expired.
• The tenant will not be able to sublet the premises.
• If the owner of the premises changes, the rule on maintaining rental relations will not apply. The new owner will not be required to act as a landlord, but will be able to demand to vacate the premises - and from the point of view of the law, he will be right.
• The tenant's failure to register the agreement may be grounds for early termination of the lease.
• Lack of registration will also affect the amount of taxes. For example, the tenant will not have the right to reduce his profits by the amount of rental payments, and the landlord will have unjustified documented income. This may lead to claims from the Federal Tax Service. The practice of arbitration courts shows that such claims can be dismissed, but this is an extra waste of time and money in court.

Important! However, the legislation does not provide for any special liability for lack of registration. Therefore, in many respects the requirements of Part 2 of Art. 651 of the Civil Code of the Russian Federation has largely become a formality.