Use of the trademark What threatens for the illegal use of a trademark in accordance with the Criminal Code of the Russian Federation? On the video about the illegal use of a trademark

Unlawful use of a trademark or similar designations is dealt with under the civil, administrative and criminal codes. Any product on which the original logo or an image similar to it was used without the knowledge of the owner or in violation of applicable law is classified as counterfeit. Thanks to such differences as trademarks, slogans and logos, consumers can quickly navigate the quality, cost and image component of a particular product.

What is a trademark and how is it different from a service mark?

Under civil law, there is no real distinction between a trademark and a service mark. It is believed that the designation is necessary to identify the quality of products, as well as to individualize individuals or legal entities, the services provided and the work provided. Legal protection of trademarks is provided by the relevant authorities, to which the plaintiff must provide the original of the act confirming the state registration and patent for intellectual property.

A service mark (trademark) can be a three-dimensional, figurative, verbal or combined designation. The name of the place where the goods were produced is understood as the name of one of the geographical objects, such as the name of a village, city or country, which has become widely known due to the high popularity of the product.

As an illustrative example, one can cite Prostokvashino, Zhigulevskoye, Gzhel or Khokhloma. To ensure proper legal protection the place of origin of the service (goods) must be registered in accordance with the procedure established in accordance with the current legislation.

If the trademark has the right to use exclusively the owner of the patent, then the appellation of origin cannot belong to one natural or legal person. Any entity engaged in the production of products in the territory of the same name has legal grounds for using the geographical name of the area in the designation of its own goods. A certificate granting the right to use such logos, images and other symbols is issued for a period of up to ten years.

A similar trademark is a logo that is identical or similar to the smallest detail, with a minimum number of differences from the original. It is rather problematic for inexperienced consumers to understand that Panasonic equipment is unlikely to last as long as products from the Japanese corporation Panasonic, and the Gilet razor can and will cost less than original accessories from the world famous Gillette brand, however can not boast of such high quality and durability. The trademark owner has the ability to transfer related rights to use or sell it for a price agreed with the buyer in advance.

What does the text of article 180 of the Criminal Code of the Russian Federation say

If someone else's trademark is used, the name of the place where the product was manufactured, service marks and other similar designations and graphic images, such a violation is subject to:

a fine of up to 200,000 rubles;
an amount equivalent to the income or salary of the accused for one and a half years.

The punishment may be replaced by correctional activities for up to 24 months or community service for at least 480 hours.

The second part of the article contains the following information: in case of illegal use of trademarks, logos and appellations of origin of products not registered in the territory of the Russian Federation, which caused damage on an especially large scale and committed repeatedly, the convict must pay a fine of up to 120,000 rubles or the amount equal to his total income for the twelve-month period. The punishment for violation can be replaced by corrective labor for up to one year or compulsory socially useful labor activity for up to 360 hours.

The third part of Article 180 regulates liability for the actions that are described in the first two parts, but were committed by members of an organized group or by persons who conspired to obtain material gain. The amount of the fine in such cases may vary from 500,000 to 1,000,000 Russian rubles, the income of the accused for a period of 3 to 5 years. In addition to paying a fine, the convicted person can be imprisoned for 6 years.

Article comments

The exclusive right to use the trademark and logo, as well as to prohibit their unauthorized duplication and distribution, belongs directly to the copyright holder.

Even if the sign belongs international company, its representative is obliged to register it in Russia. AT otherwise owner cannot rely on legal support from the side government agencies, and the case under Article 180 of the Criminal Code of the Russian Federation will not be initiated.

In order to bring the perpetrator to criminal liability, it is necessary to perform following conditions:

the act specified in one of the parts of the relevant article must be committed repeatedly;
as a result of the actions of intruders, the copyright holder suffered damage on an especially large scale.

On the video about the illegal use of a trademark

A trademark is in the full sense of the word the property of the company.

It allows you to get additional profit and other advantages when competing with other enterprises.

Ultimately, a huge amount of resources are invested in the development of a trademark.

Like any property trademark is protected by applicable law. And so it exists without .

Legal protection is essential as it is not uncommon for unscrupulous companies or individuals to try to cheat in order to profit.

The third case is the use of a similar image in advertising campaigns.

Proving Trademark Misuse Starts with Data Collection. Often, companies monitor the market on their own, monitor the emergence of cases of misuse.

After discovering a violation, the company should contact the FAS (Federal Antimonopoly Service) or the department of internal affairs and begin to prepare for legal proceedings.

Legal support can be provided legal department company (if any) or you can resort to the help of law firms specializing in such cases.

A responsibility

Several sections of the legislation of the Russian Federation regulate the issue of illegal use of a trademark. Depending on the classification of the case, the appropriate punishment is selected.

Consider what the Criminal and Civil Codes, as well as the Code on Administrative offenses. Let's start with the Civil Code.

Responsibility for the illegal use of a trademark in accordance with the Civil Code of the Russian Federation implies the ability of the right holder to demand withdrawal from circulation and destroy (at the expense of the infringer) goods. Labels and packaging that were found to be counterfeit are also subject to seizure.

In the Civil Code, article 1515 is responsible for the regulation of TK.

The claim is filed on the basis of another article - th. An important article is. It defines the grounds for the challenge.

In total, the document indicates 6 grounds to justify the defense. Most often, the defendant uses the lack of intent clause. Because of its high subjectivity, defending this section is often the easiest to defend.

The amount of compensation can be determined in two ways. In the first case, the court proceeds from the value of the goods. The violator will be charged twice the cost of goods sold with violations. The second way is the imposition of a fine, which varies from 10,000 rubles to 5,000,000 rubles.

The Code of Administrative Offenses also regulates this question. The main article is . According to the Code, the right holder can apply to the police department and file an application to initiate a case. monetary penalty for official will be from ten to twenty thousand rubles.

For a legal entity more, from thirty to forty thousand rubles. The statute of limitations is one year from the commission of the offense. An additional (and very common) measure is the confiscation of counterfeit goods. The measure is applied in 9/10 of all cases.

For serious offenses, it is allowed to initiate judicial trial within the framework of the Criminal Code of the Russian Federation.
The question is answered, "Unlawful use of a trademark."

An offense is recognized as a criminal offense if the illegal use was committed repeatedly and/or caused large losses. The Criminal Code recognizes damage in the amount of 250 thousand rubles as a major loss.

Liability for violation of trademark rights in this case may be expressed in the form of a fine of up to 200,000 rubles, or in the amount of his income for 18 months (maximum).

Another punishment is compulsory work for up to 240 hours. In the most severe cases, the court may sentence the convict to corrective labor for up to 2 years.

For a group of persons who have committed an act by prior agreement, they face much greater punishment. Criminals can be arrested for 4-6 months or sentenced to imprisonment for up to 5 years.

From all this, it becomes clear that the deliberate use of a trademark without permission can be classified as a very serious offense, for which not only a monetary fine is applied for using someone else's trademark, but also imprisonment.

You can find more information about liability for the use of someone else's trademark.

Conclusion

So, the misuse of a trademark entails liability. The most common case of misuse of TK is intentional confusion. An attacker deliberately changes, for example, the label of his product until it becomes identical with the original.

The buyer in this case is misled, and a bona fide company suffers losses. Sometimes scammers simply copy the TK, forge it in order to sell it more profitably. Responsibility for the use of someone else's trademark is regulated in accordance with the law.

CRIMINAL LIABILITY FOR ILLEGAL USE OF A TRADEMARK

L.A. ZABEGAILO, I.A. NAZAROV

Criminal Code Russian Federation(hereinafter - the Criminal Code of the Russian Federation), which entered into force on January 1, 1997, significantly tightened the penalties for the illegal use of a trademark and for the first time established liability for the illegal use of an appellation of origin (Article 180 "Illegal use of a trademark" of the Criminal Code of the Russian Federation) .

Illegal use of trademarks owned by others is a characteristic manifestation of unfair competition in the business sector and poses a serious danger to society as a whole, since it causes significant damage not only to commodity producers, consumers of products, but also to the state treasury and its authority.
Part 1 Art. 180 of the Criminal Code of the Russian Federation provides for liability for the illegal use of someone else's trademark, service mark, appellation of origin or similar designations for homogeneous goods. The commission of this act is punishable by a fine of up to 200 thousand rubles. or in size wages or other income of the convicted person for a period of up to 18 months, or by compulsory works for a period of 180 to 240 hours, or by corrective labor for a period of up to two years.
With regard to Part 1 of Art. 180 of the Criminal Code of the Russian Federation, the illegal use of someone else's trademark is understood as the use of a trademark without the permission of the copyright holder in various ways, including the methods specified in paragraph 2 of Art. 1484 part four Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), namely:
on goods, including on labels, packaging of goods that are manufactured, offered for sale, sold, displayed at exhibitions and fairs, or otherwise introduced into civil turnover on the territory of the Russian Federation, or stored or transported for this purpose, or imported into the territory of the Russian Federation;
when performing work, rendering services;
on documentation related to the introduction of goods into civil circulation;
in proposals for the sale of goods, the performance of work, the provision of services, as well as in announcements, on signs and in advertising;
on the Internet, including in a domain name and with other addressing methods.
Criminal liability under Part 1 of Art. 180 of the Criminal Code of the Russian Federation occurs only in the presence of such signs as the repeated act or the infliction of major damage.
It should be noted that the Criminal Code of the Russian Federation, as amended federal law dated December 8, 2003 N 162-FZ repealed Art. 16 "Repetition of crimes". At the same time, the sign of repetition is still present in two articles of the Special Part of the Criminal Code of the Russian Federation - in the article we are analyzing. 180 and Art. 154 "Illegal adoption (adoption)".
Repeatability within the meaning of Part 1 of Art. 180 of the Criminal Code of the Russian Federation involves the commission by a person of two or more acts consisting in the illegal use of a trademark, service mark, appellation of origin or similar designations for homogeneous goods. In this case, there may be both repeated use of the same means of individualization of a product (service), and the simultaneous use of two or more foreign trademarks or other means of individualization on one unit of goods.
This clarification is contained in paragraph 15 of the Resolution of the Plenum Supreme Court Russian Federation of April 26, 2007 N 14 "On the practice of consideration by courts of criminal cases on violation of copyright, related, inventive and patent rights, as well as the illegal use of a trademark".
With regard to such a sign as causing major damage, it should be recalled that until the end of 2003, there was no clear regulation in the criminal legislation of the Russian Federation when determining the amount of major damage in relation to Art. 180 of the Criminal Code of the Russian Federation. In fact, the resolution of one of the most important procedural issues was left to the discretion of the investigator, prosecutor and judge. For example, an investigator interested in a particular outcome of the case could make any favorable decision - to terminate the proceedings due to the lack of corpus delicti or to bring charges and send the case to court.
The Criminal Code of the Russian Federation, as amended by the Federal Law of December 8, 2003 N 162-FZ, eliminated this gap in the criminal law and determined the large damage provided for by Art. 180 of the Criminal Code of the Russian Federation, as damage exceeding 250 thousand rubles.
In a note to Art. 169 "Obstruction of legitimate business or other activities", opening Ch. 22 "Crimes in the sphere economic activity", it was established that in the articles of this Chapter, with the exception of Articles 174, 174.1, 178, 185, 185.1, 193, 194, 198, 199 and 199.1, a large amount, large damage, income or debt in a large amount are recognized cost, damage, income or debt in excess of 250 thousand rubles, especially large - 1 million rubles.
Federal Law of April 7, 2010 N 60-FZ specified in the note to Art. 169 of the Criminal Code of the Russian Federation, the cost indicators are increased six times - 250 thousand rubles. replaced by 1.5 million rubles, and 1 million rubles. - by 6 million rubles.
The repeated commission of an act or the infliction of major damage are the conditions for the onset of criminal liability and under Part 2 of Art. 180 of the Criminal Code of the Russian Federation, which refers to the illegal use of warning labels in relation to a trademark or appellation of origin not registered in the Russian Federation. Essentially, Part 2 of Art. 180 of the Criminal Code of the Russian Federation provides for an independent corpus delicti.
In the previous Law of the Russian Federation of September 23, 1992 N 3520-1 "On Trademarks, Service Marks and Appellations of Origin of Goods", warning labeling was mentioned in Art. 24 (as applied to a trademark) and Art. 41 (in relation to the appellation of origin). In part four of the Civil Code of the Russian Federation, the term "warning marking" is replaced by the terms "mark of protection of a trademark" (Article 1485 of the Civil Code of the Russian Federation) and "mark of protection of an appellation of origin" (Article 1520 of the Civil Code of the Russian Federation). At the same time, in part four of the Civil Code of the Russian Federation, the former term is also used. So, in paragraph 5 of Art. 1515 "Responsibility for the illegal use of a trademark" of the Civil Code of the Russian Federation states: "a person who produces warning labeling in relation to a trademark not registered in the Russian Federation is liable in the manner prescribed by the legislation of the Russian Federation."
Given the practical interest in warning labeling, let's look at liability for its illegal use in more detail.

Liability for illegal use
warning label

Warning marking (trademark protection sign) is a symbol in the form of the Latin letter R or the Latin letter R in a circle - R, or a verbal designation: "trademark" or "registered trademark". There is currently a predominant use of R warning labels around the world.
The functional appeal of warning labels can lead to abuse. Most often, this occurs in design and advertising practice, when the symbol R is applied to the newly developed and accepted for use, but not yet registered signs. In such a situation, premature affixing of a warning label is recognized as an illegal and criminally punishable act.
Those guilty of illegal use of warning marking mislead others about the fact of registration of the used designation as a trademark. In accordance with Part 2 of Art. 180 of the Criminal Code of the Russian Federation, the commission of this act is punishable by a fine of up to 120 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to one year, or by compulsory works for a period of 120 to 180 hours, or by corrective labor for a period of up to one year.
The subject of the crime under Art. 180 of the Criminal Code of the Russian Federation can only be a sane individual who has reached the age of 16 by the time the crime was committed. This provision is confirmed by the general norms of criminal law (Articles 19, 20 of the Criminal Code of the Russian Federation). At the same time, the subject of the crime under Art. 180 of the Criminal Code of the Russian Federation has its own specifics, since, within the meaning of Art. 1484 of the Civil Code of the Russian Federation, only an economic entity can commit this crime. In other words, the subject of the crime in question may be an individual engaged in entrepreneurial activity, or the head (other manager) of the organization who made the decision on the illegal use of someone else's trademark.
The subjective side of the crime under Art. 180 of the Criminal Code of the Russian Federation, is characterized by direct intent. The perpetrator is aware that he is illegally using someone else's trademark and seeks to commit such actions, while he pursues main goal- facilitate the sale of their goods, undermine the reputation of the rightful owner of the trademark, eliminate a competitor from the market.
Federal Law No. 144-FZ of November 17, 2001 supplemented Art. 180 of the Criminal Code of the Russian Federation, part 3, which for the first time established liability in the form of deprivation of liberty. In accordance with the modern edition of Part 3 of Art. 180 of the Criminal Code of the Russian Federation, the acts provided for by parts 1 and 2 of this article, committed by a group of persons by prior agreement or by an organized group, are punishable by imprisonment for up to six years with a fine of up to 500 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to three years or without it.
The illegal use of other people's trademarks is often committed in conjunction with other types of crimes, such as fraud (Article 159 of the Criminal Code of the Russian Federation) and illegal business (Article 171 of the Criminal Code of the Russian Federation). In case of illegal use of a trademark in close connection with other types of illegal acts, the courts may apply the rules of Art. 17 "The totality of crimes" of the Criminal Code of the Russian Federation.
The specified explanation is contained in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 18, 2004 N 23 "On judicial practice on cases of illegal business and legalization (laundering) Money or other property acquired by criminal means.
Bringing specific perpetrators of a crime to criminal liability does not preclude victims from filing civil law claims for compensation for the harm caused to them.

Presentation conditions civil suit in a criminal case

According to Part 1 of Art. 44 of the Code of Criminal Procedure of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation), an individual or legal entity has the right to file a civil claim for compensation for property damage if there is reason to believe that this harm was caused to him directly by a crime.
Thus, a civil plaintiff in a criminal case can be equally an individual or a legal entity. A natural or legal person who, in accordance with the Civil Code of the Russian Federation, is liable for harm caused by a crime (Part 1, Article 54 of the Code of Criminal Procedure of the Russian Federation), can be involved as a civil defendant.
According to the modern edition of Part 2 of Art. 44 of the Code of Criminal Procedure of the Russian Federation, a civil claim may be brought after the initiation of a criminal case and before the end of judicial investigation during the trial of this criminal case in the court of first instance. When filing a civil claim, the civil plaintiff is exempted from paying the state fee.
The purpose of a civil suit is to compensate for property damage caused by a crime. A civil plaintiff may also bring a claim for property compensation for moral damage.
The circle of powers of the civil plaintiff is determined by Part 4 of Art. 44 Code of Criminal Procedure of the Russian Federation. For example, a civil plaintiff or his representative has the right to file a petition for taking the necessary measures to secure a civil claim.
According to paragraph 4 of part 1 of Art. 73 of the Code of Criminal Procedure of the Russian Federation, the basis of a civil claim - the nature and amount of damage caused by a crime - is subject to proof in a criminal case. Evidence is made according to the rules of criminal procedure legislation. If a civil claim has not been filed, the court, when issuing a sentence, has the right, on its own initiative, to resolve the issue of compensation property damage caused by the crime. A person who has not filed a civil claim in criminal proceedings, as well as a person whose civil claim has not been considered, has the right to file it in accordance with the procedure civil litigation(part 3 of article 250 of the Code of Criminal Procedure of the Russian Federation).
Satisfaction of a civil claim may be denied: when an acquittal is issued; upon termination of a criminal case due to the absence of an event of a crime (clause 1, part 1, article 24 of the Criminal Procedure Code of the Russian Federation); upon termination of criminal prosecution due to the non-involvement of the suspect or accused in the commission of a crime (clause 1, part 1, article 27 of the Code of Criminal Procedure of the Russian Federation).
It should be clarified once again that when considering a civil claim in a criminal case, the procedural issues of such a claim are resolved according to the norms of criminal law, and substantive legal issues - according to the norms. civil law. Consequently, when determining civil liability, the amount of damages to be compensated and the procedure for compensation, the rules of civil law, primarily part four of the Civil Code of the Russian Federation, should be applied.
Filing a civil lawsuit in a criminal case provides applicants with several benefits:
exemption from payment of state duty;
a significant reduction in the cost of legal representation;
the duty to prove the nature and extent of the damage caused by the crime rests with law enforcement agencies;
there is no need to retake the same case in a lengthy and often costly arbitration process.
Unfortunately, cases of conviction of persons in accordance with Art. 180 of the Criminal Code of the Russian Federation are still rare in our country. In this regard, the criminal case on the fact of the production of counterfeit jeans is of interest, the analysis of which is set out in one of the publications in the specialized literature.
In July 2004, employees of the Economic Crimes Department of the Internal Affairs Directorate of the Yegoryevsky District of the Moscow Region and their colleagues from the regional Main Department of Internal Affairs conducted an inspection of the activities of the Pominovskaya Manufactory factory located in the village of Pominovo of the Yegoryevsky District of the Moscow Region. As a result of the check, more than 5,000 counterfeit jeans were found, labeled with the well-known trademarks "Mustang", "Diesel", "Pierre Carden", "Miss Sixty", etc. During the further check, it turned out that 150 employees of the enterprise produced about 50 thousand fake jeans.
A criminal case was initiated against the leaders of the Pominovskaya manufactory on the grounds of a crime under Part 3 of Art. 180 of the Criminal Code of the Russian Federation. The management of the factory insisted on its innocence, referring to the fact that the factory produced products exclusively by order of third parties from the material provided by them according to customer patterns. Fittings, on which well-known trademarks were applied, were also supplied by customers.
The investigation of the case lasted for about a year and ended with the judgment of the Yegoryevsk City Court of September 30, 2005 against the accused - CEO Pominovsky manufactory. The court found that the defendant repeatedly used trademarks belonging to other persons, which caused them major damage. The specified violation was carried out by the defendant by manufacturing and storage with the aim of introducing counterfeit products into commercial circulation. The investigation, and later the court, did not find evidence of involvement in the illegal activities of the founders of the Pominovskaya manufactory, establishing that the general director personally resolved all issues related to economic activity enterprises. Law enforcement agencies also found that the customer organizations that entered into contracts with the factory were registered as nominees.
Thus, the general director, who has held this post since 2000, was found guilty of committing a crime under Part 3 of Art. 180 of the Criminal Code of the Russian Federation. At the same time, the court took into account mitigating circumstances - positive characteristics at the place of residence (the defendant provided work for fellow villagers), as well as the presence of a state award - a medal "In memory of the 850th anniversary of Moscow." As a result, the court sentenced the general director of the Pominovskaya manufactory to 18 months of probation. It was decided to destroy the seized copies of counterfeit products in the amount of 5258 pieces.
As rightly noted in the legal literature, the use of the possibilities of criminal prosecution can significantly increase the effectiveness of the fight against the production of counterfeit products. The criminal procedure procedure makes it possible to detect and fix traces of a crime using such forms of preliminary investigation as a test purchase, inspection, prompt introduction, controlled delivery, search, seizure, interrogation, etc. For example, it is difficult to overestimate the importance of such an investigative action as a search in identifying and suppressing the activities of an underground workshop for the manufacture of counterfeit products. The advantage of the criminal procedural procedure is also the protocol form of fixing the traces of a crime, which allows them to be presented as solid evidence in court.
Tougher liability under Art. 180 of the Criminal Code of the Russian Federation, increasing competence and proper implementation of their official duties employees law enforcement, folding law enforcement practice will allow to more effectively counteract the spread of counterfeit products in our country.

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Today, in conditions of intense economic competition, when most manufacturers produce goods that meet consumer requirements, it is difficult to overestimate the role of trademarks. And the number of disputes regarding trademarks has recently increased significantly. Most of these conflicts relate to the rights of one firm to the results. intellectual activity competitor company.

Every day in judicial practice, many cases of illegal use of already registered foreign brands are revealed. In almost all cases, such a violation negatively affects the company's image and its status as a reliable manufacturing partner. What liability is provided for the use of a trademark in an unlawful manner? How to protect your interests as a copyright holder? Is it possible to prove the absence malice when a violation occurs? You will learn about this from this article.

What is considered a violation of the law?

Such an act as the illegal use of someone else's trademark (counterfeiting) can be attributed to the methods of unfair competition. Many novice companies, using the brand of another, more well-known and sought-after company, thereby seek to win the interest of a potential buyer. At the same time, they are not spent on promoting their own products, which, moreover, are goods of lower quality. But before you sue your competitor, you need to find out whether the situation that has arisen is the result of a direct violation of the law. Several types of violations of the rules for the use of trademarks can be distinguished at once:

Release of own products under a foreign brand without the permission of this company;
Placement of a trademark on labels and packaging of goods that are introduced into trade in Russia;
Use of someone else's mark in business documentation (letterhead, seals);
Hosting someone else's trademark in announcements, on signs and in advertising;
Use of another company's trademark on the Internet.

Info

All of the above cases, to one degree or another, constitute a violation of the current legislation and may entail criminal liability for violators. Using the trade image and business reputation of well-known companies, small producers, as a rule, pursue one goal - to obtain personal benefits at the expense of someone else's popularity. It can bring the right holder trademark rather large losses, and therefore is a punishable act.

How to prove a crime?

In case of detection of such violations, the right holder has the right to take established by law impact measures. The main thing in this case is to remember that the right to use a particular trademark gives only its state registration. If this condition is met, The owner only needs to follow the following procedure:

File a complaint with the Chamber of Patent Disputes;
Contact the antimonopoly service;
Send an application to the customs authority;
Write a claim to Rospotrebnadzor;
Compose legal action on the termination of the illegal use of the trademark.

For the guilty person to suffer criminal penalty, such an act must cause rather large damage to the right holder party or be committed repeatedly. In this regard, criminal liability for the illegal use of a trademark occurs only if the company has lost more than 1,500,000 rubles. But do not rush to petition for the appointment of a judicial or other independent examination.

Attention

It is advisable to turn to experts only in situations where comparison of trade designations requires special knowledge. This means that if the misuse of someone else's brand can be identified by the court from the perspective of an ordinary consumer, an independent study is most likely not needed.

Application Structure

Of course, in order to bring the offender to justice, it is necessary to draw up statement of claim to court. It must comply with certain requirements of the law - only in this case the court will take it into consideration and make an appropriate decision. In accordance with the current norms of criminal law, the claim must contain the following information:

Data of the court (name, address of the court, full name of the judge);
Information about the plaintiff and the defendant (passport data, address, telephone, fax, e-mail);
The total amount of the claim and the amount of the state duty;
Information about the object of the exclusive right (name, type of product);
The circumstances under which the violation was discovered;
The requirements of the applicant in accordance with the Criminal Code of the Russian Federation;
List of applications.

Before filing a lawsuit in your chosen court, prepare evidence for court session- buy counterfeit goods. Be sure to keep any checks and receipts you need to add to your claim as an attachment. Moreover, you will have to make several copies of the application and calculate the amount of damage - they also need to be used when applying to the court.

What are the dangers of using someone else's brand?

You can be prosecuted as individuals(business entities), and legal (organizations and enterprises). If the violator does not comply with any of the following conditions of the court decision voluntarily, he will have to comply with them forcibly under enforcement proceedings. According to article 180 of the Criminal Code of the Russian Federation, the trademark owner has the right to achieve through the court:

Publication of the court decision for the defense exclusive rights owner;
Removal of a trademark from counterfeit goods, labels and packaging;
Destruction of counterfeit products;
Compensation for damages in the amount from 100,000 to 5,000,000 rubles.

Advice

In order to accurately calculate the amount of losses that you suffered due to an unscrupulous competitor freema, it is enough just to determine the amount of profit received by the violator from the sale of illegally labeled products. This is the lost profit that the right holder can recover in judicial order. In addition, you can calculate payments for possible license agreement, which may have been signed with the trademark owner.

Article 180 of the Criminal Code of the Russian Federation provides for various penalties for those who carry out illegal activities in the commercial sphere. Illegal use of a trademark can be punished both under the Criminal Law and under the Administrative Law. Liability for illegal use of a trademark varies somewhat. This article will focus on the penalties provided for by Article 180 of the Criminal Code of the Russian Federation with comments. Why can the same act be considered both within the framework of the Criminal Code of the Russian Federation and within the framework of the Code of Administrative Offenses of the Russian Federation?

Art. 180 of the Criminal Code of the Russian Federation regulates penalties in relation to those people who illegally use the so-called means of individualization of goods for their own purposes: for further earnings, PR of their products and other purposes. First of all, it is necessary to understand what is meant by means of individualization of goods.

In order to make their products unique and distinguish them from other products on the market, manufacturers create an individual trademark. A trademark should be understood as a certain designation, which can be in the form of an image, an inscription, and which distinguishes this product from any other. However, in modern world fraudsters often use existing copyright trademarks for their own purposes. The legislation of the Russian Federation prohibits doing this, therefore, in the Criminal Code and in the Code on Administrative violations The Russian Federation has articles that regulate penalties for those who decide to take advantage of someone else's idea of individualization of products.

The new version of Article 14.10 of the Code of Administrative Violations of the Russian Federation provides for various penalties for those who have used someone else's means of individualizing a product or service.

Unlike the act, which is considered within the framework of Article 180 of the Criminal Code of the Russian Federation, this action as a result has a violation of relations in society, which are based on intellectual property. This is due to a special deliberate encroachment on Copyright trademark owner.

In accordance with Article 14.10 of the Code of Administrative Offenses, as a preventive measure, the legislation provides the following types punishments:

administrative sanctions;
seizure of property.

Such an act is considered within the framework of the Criminal Code of the Russian Federation in the case when, as a result of illegal actions, heavy material damage was inflicted on an individual or organization.

In the legislation of the Russian Federation, major material damage means the loss sum of money in the amount of more than 250 thousand rubles.

Article 180 of the Criminal Code of the Russian Federation, namely the first part of the article, considers cases in which someone else's signs were used by someone several times, while these actions caused serious damage in relation to the accused.

In such cases, the following types of punishment may be applied by law:

Fine (100 - 300 thousand rubles).
Work (up to 480 hours).
Performance of works (up to two years).
Arrest (up to two years), as well as a fine of up to 80 thousand rubles.

In some cases, attackers resort to using marks of products not manufactured in the Russian Federation.

In such cases, taking into account the fact that the action was committed repeatedly and entailed large material losses, the commission of such an act entails the following preventive measures:

a fine (120 thousand rubles);
compulsory work (360 hours);
correctional labor (1 year).

In practice, there are cases of this act being committed by a group of people who had preliminary selfish motives and collusion.

Art. 180 part 3 of the Criminal Code of the Russian Federation provides for the following sanctions in such cases:

Fine (200 - 400 thousand rubles).
Forced labor (4 years).
Restriction of freedom (4 years), as well as a fine of 100 thousand rubles.

If, however, an organized group of people with mercenary motives, goals and conspiracy took part in the commission of an unlawful act on the use and application of the trademark of another company, the penalties become stricter:

penalty(up to a million rubles);
forced labor(5 years);
arrest (up to 6 years), as well as a fine of 500 thousand rubles.

Thus, any illegal use of a trademark entails liability under criminal or administrative law, the choice of which depends on the severity of the consequences that the atrocity entailed. Administrative law does not consider cases in which the damage from copyright infringement was large.

The comments attached to Article 180 of the Criminal Code of the Russian Federation set out such concepts as the subject, object, composition, as well as the objective and subjective side of the offense. Let's consider them in more detail.

The subject of the crime is any trademark owned by a citizen or organization that has been used by third parties for illegal purposes.

Items can also be such parameters of goods and services as:

Service sign.
The name of the production location. It can take the form of text or an image, and its main task is to indicate the geographical realities associated with the origin of the products produced. For example, the well-known product "Tula gingerbread" in its name has the designation of the area in which this delicacy is produced.
Other similar designations and logos of goods and products.

As a rule, the author and owner of a particular mark, in accordance with copyright law, can use this mark for their own commercial purposes, while prohibiting anyone else from using it.

The second part of Article 180 of the Criminal Code of the Russian Federation refers to cases where the trademark of a foreign organization was used by citizens of the Russian Federation for illegal purposes.

Surely, everyone is familiar with Chinese products, the names of which are slightly distorted. For example, on the Chinese product market, including on Chinese online shopping sites, you can find Panasonix brand products, which is very similar to the name of the well-known Japanese brand Panasonic, within which radio equipment is produced. In addition, the well-known sportswear brand Adidas in China exists under the name Adida in some places. And there are many such examples.

In order to limit the possibility of illegal use of the sign as a warning symbol, the author can use the icon R, placed in a circle. This confirms the fact of registration of the brand, and the encroachment on its use for illegal purposes is prohibited by law.

The objective side of the atrocity is the very fact of the illegal use of any symbols and texts created to individualize products, provided that the result of such use was a serious material damage.

Trademarks can be illegally used in advertising elements, announcements, on the packaging of products.

According to the commentary, individualization marks cannot be used by people who do not have the right to use them if:

the person who encroached on the use of the mark did not register it independently;
the person did not receive it from the author on legal grounds by sale or assignment;
the person has not registered the name of the place of production in accordance with the law;
the offender uses symbols similar to those already existing to designate and individualize their products;
the used sign already has a warning marking confirming the fact of its preliminary registration abroad.

Thus, the registration of a trademark and the placement of a special marking are the main parameters confirming authorship. If these procedures are not followed, the use of the mark is prohibited.

Criminal liability occurs when:

The offense was committed several times.
The result of the offense is a large material damage.

It is important to note that when repeated commission atrocity damage may not reach the amount of 250 thousand rubles. However, the repeated commission of a crime is still considered within the framework of Article 180 of the Criminal Code of the Russian Federation.

The subjective side is the selfish motives and intent of the criminal or criminals to commit the act. The fact that attackers know that the marks they use are already registered and that they do not have the right to use them for their own purposes.

Anyone can become a subject: both individuals and individual entrepreneurs, and legal entities.

The most aggravating circumstance of such a criminal case is the fact of a group crime, when the group members were guided by a preliminary conspiracy and selfish motives.

Another commentary on Article 180 of the Criminal Code of the Russian Federation

There is one more comment to article 180 of the Criminal Code of the Russian Federation, which also sets out the basic concepts, including those that were adopted by the Plenum of the Supreme Court in 2007. One of these concepts was the following: any similar signs or signs based on existing ones are prohibited.

Legal legislation protects those trademarks and marks:

which have been registered and whose owner has patent and invention rights to them;
whose owners have an appropriate certificate or certificate that confirms their rights to use trademarks;
the rights to use which were transferred by the author or owner to another person on the basis of a contract of sale or gratuitous assignment.

The offender can repeatedly use for their own purposes both one symbolism and several at the same time - both individually and in combination.

As mentioned earlier, a trademark with the designation R is inviolable, since the owner has registered his copyright, thereby prohibiting the use of the mark by others.

Arbitrage practice

In judicial practice, there are many cases of illegal use of markings, signs and other means of individualization of goods or services by third parties who do not have the right to use them.

One of the organizations working in the service sector in the Smolensk region went to court, stating that one of the websites on the network posted information about the sale of clothes, shoes and accessories that are copies and fakes of world famous brands. This website and domain have been carefully analyzed, as a result of which the persons owning the site have been identified and discovered. Since the information posted on this site is prohibited in the Russian Federation, as well as for using other people's signs, the site owners were sentenced to corrective labor in accordance with the first part of Article 180 of the Criminal Code of the Russian Federation.
Another similar case took place in the Nizhny Novgorod region in 2018. A site selling counterfeit products using the symbols of the World Cup was discovered on the Internet. The intent of the site owners and large illegal incomes became the reason for bringing them to criminal liability. The initiated criminal case is under consideration in the prosecutor's office.

Today, such offenses most often occur online, as e-commerce has become the most widespread. Abusing other people's copyrights can lead to quite serious consequences, even though such trade is carried out via the Internet, and not on the streets of the city.

Such an offense cannot be characterized as particularly serious. However, major material damage, problems in civil relations are quite serious consequences of this act.