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The Pepeliaev Group has, acting on behalf of Shell, filed a claim with the Russian Constitutional Court challenging article 110(2) of the Russian Commercial Procedure Code, which — the Pepeliaev Group claims — “does not allow a reasonable amount of court costs to be determined objectively.”

According to the Pepeliaev Group, grounds for applying to the Constitutional Court arose when the Moscow State Commercial Court “twice substantially reduced the amount of court costs for which recovery was claimed”, first setting the “reasonable amount” at RUB 70,000 and then at RUB 150,000. In fact, according to a press release by the Pepeliaev Group, Shell’s actual expenses for its legal representation in the litigation came to RUB 2.75 million.

In making its decision, the Moscow State Commercial Court ignored Shell’s representations that its selection of legal adviser was reasonable, that the fees of the selected lawyers were at the market rate, and that such lawyers were highly reliable, experienced, and reputable.

According to the Pepeliaev Group, “the practice of substantially reducing the amount of court costs claimed for recovery is particularly widespread. It is especially frequently encountered in court disputes to which tax authorities are a party. Courts protect tax authorities’ financial interests, believing that they are serving the wider public interest by doing so.”

However, the firm argues on behalf of Shell, that, “when contentious rules of the Commercial Procedure Code are arbitrarily applied, this contravenes article 19(1) of the Russian Constitution (‘all persons are equal before the law and a court’).” The firm also argued that, “in addition, the following constitutional rights of the applicant are infringed: the right to private property (article 35(1)); the right to receive qualified legal assistance (article 48(1)); and the right to be fully compensated for harm caused by the actions of state authorities (article 53).”

Finally, the Pepeliaev Group published the text of its appeal on the firm’s website, which, it reports, “will enable the business and legal communities to be informed about the essence of the problem that has arisen,” and “will also allow all interested parties to send the court letters of support as ‘friends of the court,’ expressing their own position concerning the need for this application to be examined. By doing so, they will facilitate the formation of a constitutional law position on the procedure for determining the reasonable limits within which court costs may be recovered.”

Dentons has announced that Arkadiusz Krasnodebski was re-elected as Poland Managing Partner for a new, three-year term of office. The firm also announced that Piotr Szafarz, Partner and Head of the Real Estate practice for Dentons in Warsaw, was re-elected as member of the Europe Compensation Committee. Both were elected by a vote of Dentons’ Partners in Poland.

Krasnodebski heads the Energy and Natural Resources practice in Poland and Europe. He was elected to his first team as Managing Partner of Dentons’ Warsaw office in January 2014 after former Warsaw office Managing Partner Tomasz Dabrowski was elected Dentons Europe Chief Executive Officer. His second term will last until December 31, 2018. 

“I am pleased to see that for the second time in a row, partners in Poland have entrusted the position of Managing Partner to Arkadiusz Krasnodebski,” said Tomasz D?browski, Chief Executive Officer of Dentons Europe. “In doing so, they have expressed their appreciation of his efforts and accomplishments in maintaining Dentons’ leading position on the Polish market.”

Piotr Szafarz, legal advisor and Head of the Warsaw Real Estate Practice, became a member of the Europe Compensation Committee for the second time, and he will also hold his position until the end of 2018.  

Wolf Theiss has advised Netherlands-based International Insurance Consortium, an investment company from the Netherlands focusing on the insurance markets of Eastern and South-Eastern Europe, on its acquisition of Romanian general insurer Carpatica Asig, which is undergoing a financial recovery procedure. The sellers — whose identity was not disclosed — were reportedly advised by Voicu & Filipescu.

IIC has announced that it expects to conclude the transaction before the summer, once regulatory approval is obtained.

“Carpatica has been in the news the last few months as a result of capital issues,” said IIC Managing Director Jacob Westerlaken. “I would like to emphasize that IIC intends to adequately capitalise the company, after receiving all the necessary approvals.” 

Romanian transport company Atlassib Sibiu owns 93.97% of the Carpatica, which is the eighth biggest insurer in Romania. The company’s daily gross written premiums rose 43% to RON 2.9 million (EUR 640,600) in 2015, the company reported and claims paid by the insurer last year totalled RON 382 million. The company’s cash flow amounted to RON 25 million, and Carpatica estimates that it will rise to RON 103 million this year.

The Wolf Theiss team was coordinated by Partner Ileana Glodeanu and included Senior Associate Adelina Iftime-Blagean and Associates Luminita Olteanu and Monica Tinteanu.

Voicu & Filipescu declined to comment on the matter.

Editor’s Note: In mid-June 2016, several months after this article was published, CEE Legal Matters learned that the transaction had not been completed as planned. On June 17 Wolf Theiss Partner Ileana Glodeanu confirmed that, “yes, the deal fell apart as my client invoked a MAC and withdrew its application with the FSA.”

 

AstapovLawyers has announced that Partner Oleh Beketov has acted as an expert on issues of Ukrainian law in the Pinchuk v. Bogolyubov and Kolomoisky litigation being heard by the High Court of Justice in London.  

According to AstapovLawyers, “the dispute concerned the shares of Krivorozhskiy Zhelezorudnyy Kombinat (KZhRK, Krivoy Rog iron-ore plant), and parties referred to the norms of the Ukrainian law.”

Beketov appeared as an expert for Hogan Lovells, which was representing the plaintiff. According to AstapovLawyers, “the parties agreed on a settlement of the dispute and have concluded an amicable agreement.”  

Liniya Prava has announced that it advised the Government of the Russian Federation and Renaissance Capital on the February 29, 2016 shareholder’s agreement between the Russian government and non-state shareholders regarding the Vnukovo International Airport joint-stock company.

According to Liniya Prava, “the conclusion of the agreement is an important stage of the project for consolidation of assets of Vnukovo Airport in accordance with the decree of the President of the Russian Federation dated 1 August 2015. As a result of consolidation, a participatory interest of the Russian Federation in the charter capital of the joint-stock company Vnukovo International Airport (airport’s operator) will amount to 25.11695%, whereas a participatory interest of non-state shareholders will amount to 74.88305%. The conclusion of the shareholder’s agreement was preceded by more than 2.5 years of work.”

Renaissance Capital is a Russian-founded investment banking firm that operates in high-opportunity emerging and frontier markets and which has offices in Moscow, Lagos, Nairobi, Johannesburg, Dubai, and Istanbul, as well as London, New York and Nicosia. It has been part of Mikhail Prokhorov’s ONEXIM Group since 2012.

Liniya Prava Managing Partner Andrey Novakovskiy was enthusiastic about his firm’s work on the matter, saying, “It is really prestigious for us to participate in such a high profile project, and we are grateful to the team of the Federal Agency for State Property Management and the team of Renaissance Capital for the opportunity.”

Previously, Liniya Prava was retained to advise on the Vnukovo Airfield Infrastructure Development project (as reported by CEE Legal Matters on August 6, 2014).

Gessel has announced the promotion of Margaret Badowska, Maciej Kozuchowski, and Krzysztof Marczuk to the firm’s partnership, and announced that Polish lawyer Ludwik Zukowski joined the firm in January as a Partner.

Badowska, who joined Gessel in 2010, specializes in Corporate/M&A and transactions in banking and finance. She has previous experience with both Soltysinski, Kawecki & Szlezak and Gromek and Partners, and worked in-house with Phillip Morris Poland, PLL LOT SA, and Centralwings, the first Polish low-cost airline. She received her degree from the Faculty of Law of the University of Warsaw in 1998.

Kozuchowski, who joined Gessel in 2006 after receiving his Master’s Degree in Law from the University of Warsaw that same year, specializes in merger and acquisition transactions in the private market and legal aspects of business financing. He also works with private equity and venture capital funds as they establish funds and assemble financing, acquire companies, and effectuate exits. 

Marczuk specializes in public trading in financial instruments on the capital market. He advises on public and private issues of financial instruments, acquisition of significant stakes in public companies, legal services brokerage houses and investment funds, the performance of the duties of information by public companies, and support for corporate affairs. He also represents clients in administrative proceedings before the Financial Supervision Authority. He has also worked in the Legal Department and the Department of Financial Instruments of the Securities and Exchange Commission and the Department Issuers Financial Supervision Commission. He joined Gessel in 2007, and graduated from the Faculty of Law and Administration of the Catholic University of Lublin.

Zukowski, who joined Gessel to lead the firm’s sports law practice, also specializes in business transactions, copyright law, and personal data protection. From 1990 until 2016 Zukowski operated his own law firm specializing in investments and in intellectual property and personal data protection. Between 2000 and 2006, he served as President of SKILEX International, and he claims over 15 years’ experience in the Olympic movement, as — among other things — counsel to the committee propagating Zakopane as an Olympic candidate city for 2006 and as a member of the State Sports Investments Council affiliated with the Office for Physical Fitness and Sports (1994-2002). Since 2006 he has served as an arbitrator with the sports arbitration tribunal affiliated with the Polish Olympic Committee and with the LEWIATAN Arbitration Court.  Zukowski is a 1970 graduate of the Faculty of Law and Administration at the University of Warsaw.

Alrud has announced that Maria Ostashenko has become a Partner, heading the firm’s Commercial, Intellectual Property and Data Protection practice areas.

According to Alrud, Otashenko — who graduated from the Lomonosov Moscow State University in 2004 and joined Alrud in 2006 — “advises clients on managing credit risks of parties, on forms of legal presence and models of conducting business in Russia, supports launching start-ups and implementation of complex projects related to international contracts. In the IP area Maria renders legal support for formalizing IP rights, use, management and protection of brands and intangible assets, conducting marketing campaigns and advertising. She possesses extensive experience of resolving disputes regarding intellectual property, including alternative  dispute resolution. Maria represents international clients in the matters involving data protection regulation in Russia, advises on obligations of operators related to data processing, including cross-border data transfers, structuring data flow between the members of international groups.”’

“We are glad to have Maria as one of the partners of our firm,” said Senior Partner Maxim Alekseev. “The clients respect Maria for her delicate treatment and fundamental approach to their concerns. Maria’s broad experience in the areas she works in will allow her to secure existing clients and win new ones.” 

The Law on Protection of Personal Data (“Data Protection Law”), which is mainly based on Directive 95/46/EC, is approved by the Turkish Grand National Assembly (“TGNA”) on March 24, 2016 (previously commented on by ELIG, Attorneys-at-Law, on February 18, 2016). Data Protection Law will now be sent to the President for approval and publication. The President will have fifteen (15) days to publish the law approved by the TGNA, unless he has any objections that compel him to return the law to TGNA for reevaluation.

Once the Data Protection Law is published in the Official Gazette it will enter into force, with the exception of certain provisions which will become effective after the transition periods regulated under the law. 

This is the first separate and dedicated general data protection legislation of Turkey. Data Protection Law introduces and imposes new obligations on the data processors and data controllers operating in Turkey. It introduces various provisions on processing and protection of personal data and sets out the principles of personal data processing and transfer of personal data, and brings out new definitions to substantial terms, such as “explicit consent” which is stated as a condition of data processing. Data Protection Law also sets forth the conditions of processing of personal data, which are principally obtaining data subject’s explicit consent and being required by law. Obligations on data controllers are imposed in terms of information requirements and providing data safety, while the Data Protection Law also sets forth administrative fines in case of breach of certain provisions. 

The Data Protection Law introduces a Personal Data Protection Authority, which will be a new establishment in Turkey and requires enrolment to the Data Controllers’ Registry which will be maintained publicly under the supervision of the Personal Data Protection Board. Accordingly, natural and legal persons who process personal data in Turkey will be registered under this registry before processing personal data.

In that scope, classification and risk assessment, review of existing procedures and determining the prospective actions to be taken will be of high importance for compliance.

(First published in Mondaq on March 25, 2016)

By Gonenç Gurkaynak, Managing Partner, Ilay Yilmaz, Partner and Nazli Pinar Taskiran, Associate, ELIG, Attorneys-at-Law

The EU trademark system has undergone substantial reform. A first set of changes entered into force on 23 March 2016.

The unitary Community Trademark (CTM) is now called the European Union Trade Mark (EUTM). The Office for Harmonization in the Internal Market (OHIM) is now called the European Union Intellectual Property Office (EUIPO).

Changes of fees

A new “one-fee-per-class” system will apply: The basic fee will be lower than it was before. It will apply for trademark filings and renewals covering one class of goods and services. Every additional class will cost an additional fee. While previously three classes were covered by the basic fee, applicants will have to consider budgetary aspects starting from the first class in the future.

Watch out for conflicting trademark applications and act swiftly

As before, the owner of an earlier EUTM, which has been registered for more than five years, cannot prevail in infringement proceedings against use of a younger registered (EU or national) trademark if he cannot prove genuine use of the earlier EUTM at the time of the enforcement. The significant change now for intervening rights is that the owner of the earlier trademark needs to be prepared to also show that in the past, at the time of filing (priority) of the younger mark, the earlier mark:

• enjoyed a sufficient scope of protection (a sufficient degree of distinctiveness or reputation) to obtain the declaration of invalidity of the younger mark; and 
• has genuinely been used (if registered at that time for more than five years)

Such proof, in relation to the past, can be really burdensome. Consequently, trademark owners are well-advised to:

• procure early notice about potentially conflicting younger marks (through a watch service); and 
• take appropriate action as early as possible, eg, file oppositions.

Substantially the same rules will apply for earlier national trademarks under the amended EU Trademark Directive (upon implementation into national law, which has to be done by the EU member states until January 14, 2019).

Register your brand as early as possible

The owner of a younger trademark is therefore in a better position when he is not only relying on unregistered use-based rights, but has a registered trademark. Consequently businesses are encouraged:

• to file for the registration of trademarks; and 
• to file as early as possible, so that the trademark may come up in watch services and the applicant shall be notified by the owner of any potentially conflicting earlier rights as early as possible.

EUTM via International Registration

EUTMs filed via the Madrid System (as designations of an International Registration) will become more attractive as the opposition period will now already start one month after the publication date (previously this was delayed for six months).

Carefully consider the goods and services covered – transitory period for certain amendments

The translation of the real scope of business activity, for which the trademark shall be used, into sufficiently clear and precise terms for a list of goods and services in a trademark application has become much more important over the last years than it was in the past. The complexity of current and planned future use in commerce needs to be adequately reflected in the list of goods and services. It should not be too narrow, in order to allow for a natural development of the business in the near future – and not too broad, in order to avoid unnecessary conflicts with earlier rights or the need of subsequent limitation to the goods and services for which the trademark is actually used if challenged for non-use later-on.

It is therefore advisable:

• to review one’s trademark portfolio in order to identify whether it fits the current requirements; 
• to use the transitory period until 24 September, 2016 to request the amendment of the list of goods and services if the list of goods and services of an EUTM applied before 22 June, 2012 contains the entire class heading of a class according to the Nice Classification, but the literal meaning of the class heading does not cover goods or services important for the trademark owner; and
• to consider replacing a vague term in the list of goods and services by a precise term by way of a partial surrender.

Schoenherr has been advising clients on the appropriate identification of goods and services according to the recent standards. We will be happy to advise our clients on their specific needs in relation to their existing trademark portfolios. The coming into force of the EU trademark law reform may be a good opportunity to review existing trademark portfolios.

By Christian Schumacher, Partner, Guido Kucsko, Partner, and Michael Woller, Attorney at Law, Schoenherr

The Gur Law Firm has advised and represented Samsung Electronics and its subsidiaries in Turkey, the People’s Republic of China, Vietnam, and India in an investigation carried out by Turkey’s Ministry of Economy concerning Samsung’s imports of mobile phones into Turkey.

The investigation, the Gur Law Firm reports, was initiated on an application lodged by Vestel and spanned a time period of 15 months, and concluded in March 2016 with a decision not to impose any “safeguarding measures” by Turkey’s Board for the Evaluation of Safeguarding Measures in Imports.

According to the Gur Law Firm, “Samsung Electronics is the leader of Turkey’s fast growing mobile phone market commanding a remarkably high market share.”

The Gur Law Firm team was led by Of Counsel Evren Guldogan and included Partner Sena Apak and Associate Lili Nahmias.