Illegal use of a trademark - A commentary to the Criminal...

Illegal use of the trademark

1. Illegal use of another's trademark, service mark,

the names of the place of origin of goods or similar designations for homogeneous goods, if this act was committed repeatedly or caused major damage -

is punishable by a fine of up to two hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to eighteen months, or by compulsory labor for up to four hundred and eighty hours, or by correctional labor for up to two years (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 420-FZ of 07.12.2011).

Illegal use of a warning marking in respect of a trademark or appellation of origin not registered in the United States, if the act has been committed repeatedly or caused extensive damage -

is punishable by a fine of up to one hundred and twenty thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to one year, or by compulsory labor for up to three hundred and sixty hours, or by correctional labor for up to one year

(as amended by Federal Law No. 162-FZ of December 8, 2003, No. 420-FZ of December 7, 2011).

3. Acts stipulated by parts one or two of this article committed by a group of persons by prior agreement or by an organized group -

is punishable by a fine in the amount of five hundred thousand to one million rubles or in the amount of the wage or other income of the convicted person for a period of three to five years, or by forced labor for a period of up to five years, or by imprisonment for up to six years with a fine of up to five hundred thousand rubles or in the amount of the wage or other income of the convicted person for a period of up to three years or without it (in the amended version of Federal Law No. 420-012 of December 7, 2011) (part three was introduced by Federal Law No. 144-FZ of November 17, 2001).

1. The content of a number of signs of the offense is disclosed in the Resolution of the Plenum of the US Armed Forces dated April 26, 2007 No. 14, taking into account the meaning in which the relevant concepts are used in Sec. VII GC "Rights to the results of intellectual activity and means of individualization."

2. Trademark and service mark are symbols used for individualization of goods, work performed or services rendered by legal entities or individuals (Article 1477 of the Civil Code). A stranger is a trademark (service mark) registered in the name of another person and not ceded under the contract in respect of all or part of the goods, or the right to use which is not provided by the trademark owner to another person under a license agreement. In §2 of Ch. 76 ГК it is defined, who can be the owner of the exclusive right (the legal owner) on a trade mark (service mark), the maintenance of such right.

3. Under unlawful use of another's trademark, service mark or similar designations for homogeneous goods with respect to part 1 of the article is understood as the application of a trademark or a designation similar to it to a degree of confusion without the permission of the owner of the specified means of individualization: on goods, labels, packages of these goods that are manufactured, offered for sale, sold, otherwise introduced into civil circulation in the United States or stored and (or) transported with this purpose Or imported into the United States, as well as the performance of work, provision of services and performance of other actions, the concept of responsible use of the trademark in the art. 1484 GK, et al.

4. On the notion of the name of the place of origin of goods, the rights of persons who registered this name and other persons who, within the boundaries of the same geographical object, produce goods possessing the same basic properties, certificates of the relevant law, types of use of the name and see § 3 of Ch. 76 GK.

5. Illegal is the use of the registered appellation of origin by a person without a certificate, even if the actual place of origin of the goods is indicated or the name is used in translation or in combination with such expressions as genus & quot ;, type & quot ;, imitation etc., as well as the use of a similar designation for any goods that can mislead consumers with regard to the place of origin and special properties of the goods.

Taking this fact into account, goods, labels, packages of goods on which the names of places of origin of goods or designations similar to them to the degree of confusion used for homogeneous goods are illegally recognized.

6. Similar to trademarks, service marks, appellations of origin, designations for similar goods are designations that are identical or similar to foreign signs and names to the degree of their mixing (for example, Panasonix instead of Panasonic for household appliances). To prohibit the registration of such signs and exceptions to this rule, see Art. 1483 GK.

7. The warning marking is now also defined by the legislator as a sign of protection, which the rightholder has the right to use to notify about the exclusive right to a trademark (article 1485 ГК).

Illegal applied to part 2 of the article being commented is the use of a warning marking in respect of a trademark or place of origin of goods not registered in the United States.

8. Repeatedness within the sense of part 1 of the article is supposed to involve the commission of two or more acts involving the illegal use of a trademark, service mark, appellation of origin or similar designations for homogeneous goods. In this case, there can be both a repeated use of the same means of individualization of goods (services), and simultaneous use of two or more foreign trademarks or other means of individualization on one unit of the product.

With respect to part 2 of the article being commented, the commission of two or more times unlawful use of precautionary marking with respect to a trademark or appellation of origin not registered in the United States is considered repeated. The offense provided for in the article may be imputed irrespective of whether there is a sign of serious damage. If a person simultaneously presents for sale goods with counterfeit trademarks of two trademark owners, his actions can be regarded as committed repeatedly, since damage is caused to two independent direct objects, each of which is a relationship arising from the realization of the right to a trademark of a particular owner of that mark .

9. In accordance with Note, to Art. 169 of the Criminal Code, the damage caused by the acts specified in the article under review is considered to be large if it exceeds 1 million 500 thousand rubles. This damage is caused to the right holder, as well as to a person who does not receive income as a result of the illegal use of these designations.

10. The subjective side is a direct intent.

11. Subject crimes - general. This rule applies to the case when illegal actions provided for in the article are committed using the organizational legal form, i.e. on behalf of a legal entity. In this case, the executors will be recognized not only the heads of the organization, but also its employees, as well as other persons directly involved in the crime.

12. On the notion of groups of persons by prior agreement and an organized group , see the comment, to art. 35.

13. If the person is misled by making the articles provided for in the article to be commented on the conditions under which he agrees to acquire the goods (most often, with respect to the quality of the thing), then the deed is additionally qualified as fraud.

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