The end of gray import

The import of goods from abroad for resale can be outlawed tomorrow the Supreme Arbitration Court (you) will consider the draft joint decision of the plenums of you and the Supreme Court (Supreme Arbitration Court), dedicated to the interpretation of part 4 of the Civil Code (Civil Code). One of the pain points of the decision, the disputes around which are going through the year, is paragraph 63, the essence of which is as follows: if the goods are imported from abroad not for personal, but for commercial purposes, the copyright holder is necessary to use a trademark. If the decision is adopted, an independent importer will no longer be able to import, for example, used cars without the permission of the automaker for their subsequent sale. In this case, the goods will be confiscated.

Supporters of the decision explain the need for its adoption by struggle with the so -called gray import. Opponents motivate their position by the fact that if the document is approved, a blow to small business importing goods from abroad will be struck. Official dealers, in the absence of competition, will inflame prices for supplied products.

As 23 thousand bottles of beer confiscated

On October 17, 2008, the Moscow Arbitration Court granted the statement of the central excise customs about bringing to administrative liability LLC Stylef. The statement contained a requirement to fined Stylef and confiscate 800 Staropramen Premium beer boxes imported in the Russian Federation. Prior to this, the customs authorities received a statement by San Inbev OJSC on the protection of intellectual property in the Russian Federation and, above all, the copyright holder of the Staropramen trademark.

Counterfeit or not counterfeit?

The controversial situation has developed after the entry into force of part 4 of the Civil Code on January 1, 2008. Article 1487 (the exhaustion of the exclusive right to a trademark) says that the use of a trademark by other persons in relation to goods that were introduced into circulation in the territory of the Russian Federation or with his consent is not a violation. The question of what to do with goods imported into Russia without the consent of the copyright holder remained open. “Previously, in article 4, clause 2 of the Law on trademarks, it was clearly written what actions are a violation of the trademark. In particular, storage, import into the territory of the Russian Federation of marked goods, etc., ”explains lawyer Vadim Uskov. - Unfortunately, in part 4 of the Civil Code, the key position, what actions are a violation of the trademark, are absent. There is a general declaration that it is impossible to use someone else's trademark. ”

According to Uskov, a bunch of Article 4.2 of the Law on Trademarks as a qualifying part and Article 14.10 of the Code of Administrative Offenses, where it is written about the illegal use of a trademark, worked. “There were a huge number. In our company alone in 2007 there were more than 320 cases under Article 14.10 of the Code of Administrative Offenses, ”says Vadim Uskov.

However, over the past year, several excesses occurred due to changes in the legislation (see certificate). Customs officers initiated affairs against those persons who imported goods for personal use. “In response to this skew, including you, the concepts of“ counterfeit, ”says Uskov.

There were opinions that the customs should only record the import of counterfeit, but it has no right to stop it. “Some lobbyists have sought to secure these opinions that are dangerous for the whole country in the dedicated draft resolution of you and the Supreme Court. If this happens, then the level of counterfeit in the country's stores will increase sharply, ”Uskov believes.

As Porsche Cayenne confiscated

On March 28, 2008, the Moscow Arbitration Court granted the statement of the central excise customs about bringing to administrative responsibility LLC Genesis (Moscow), decided to finish this company for 30 thousand rubles and confiscate the 2004 Porsche Cayenne, legally bought by it abroad. The basis of the decision was the lack of a permit for the introduction of a car into a civilian turnover from Porsche Russland, an exclusive license for the use of Porsche trademark in Russia.

“This situation has always existed in Russian legislation, and there is nothing new in it. If the goods were produced outside the Russian Federation and there was no consent to its distribution in Russia, then the goods are equated with counterfeit. Similar norms are in force in the EU, ”explains the partner of the international law firm Baker & Mckenzie Evgeny Arievich.

Small business

According to the President of the Public Organization "Non -Profit Partnership" Independent Importers "Mikhail Kulyabin, if the decision is adopted, parallel imports will be destroyed. That is, the import of auto parts into Russia, for example, from the UAE, where they are an order of magnitude cheaper, will become illegal if its operators do not have official dealers of manufacturers. Parallel import, according to Kulyabin, is a normal phenomenon. It lives a significant part of small and medium -sized businesses. The problem arises when the copyright holder and his representatives supply goods to the country at an uncompetitively high price, or produce lower quality products in the country, or do not supply part of their assortment to the country at all.

Mikhail Kulyabin cites the Far East as an example. The used cars brought from Japan have no analogues in Russia and are more competitive compared to the products of the domestic automobile industry. But if the decision is adopted, their import will be outlawed. “Parallel (gray) import is the import of the original product with an unauthorized importer. This action is considered illegal not only in Russia, but almost throughout the world, ”says Vadim Uskov. Gray import, just like fakes and similar goods to the extent of mixing, in accordance with Russian legislation, is counterfeit. In addition, gray import, according to Uklov, often does not comply with Russian standards.

Against the adoption of the decision in the current form is the Federal Antimonopoly Service (FAS). “FAS believes that it should not be limited to bona fide acquirers, supplying the original goods of copyright holders to the territory of Russia, legally introduced into circulation abroad,” the agency said.

As the spare parts of Mercedes-Benz cars confiscated

On March 4, 2008, the Arbitration Court of the Kaluga Region decided to confiscate a batch of spare parts with the Mercedes-Benz trademark by Karens LLC (Kaluga) and finalize this company for 30 thousand rubles. The applicant was the central excise customs. Karens LLC acquired spare parts totaling $ 66,833,17 from the American company Ableton Global Ltd. The court found that, regardless of the legality of the acquisition of spare parts in the United States, their import to Russia could be carried out only with the permission of the owner of the right to a trademark - the German company ending the end -forming form of theDaimlercrysler AG, or the company representing it in Russia.

The decision, although it does not apply to individuals, but it may affect them. “According to the decision, the person importing goods to Russia actually loses the right to dispose of the goods. This is a defeat in the rights of an unlimited circle of persons. Because of this, bringing, for example, a car, it will not be possible to sell it later, ”says Anatoly Semenov, Chairman of the Sub -Committee for Economics and Innovation, the chairman of the subcommittee in economics and innovation. In addition, in his opinion, no one will prevent customs officers from counting several bottles of wine brought for personal consumption.

01/13/2009 / Andrey Biryukov, the material was published in the "newspaper" No. 3 dated 01/14/2009.