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On 14 December 2017 the Constitutional Court of the Russian Federation considered the case regarding the review of constitutionality of Articles 1252, para.4; 1487; 1515, paras 1,2 and 4 of the Civil Code of the Russian Federation

On 14 November 2017 the Constitutional Court of the Russian Federation in a public hearing considered the case regarding the review of constitutionality of Articles 1252, para.4; 1487, 1515, paras 1,2 and 4 of the Civil Code of the Russian Federation. The consideration of the case was initiated by the applications LLC “PAG”.    

History of the question
LLC "PAG" concluded a state contract for the supply of a special paper of the SONY trademark to the medical institution for the ultrasound machine. The company purchased this product from a third-party Polish company and brought it to Russia. Customs clearance did not have time to pass, as the goods were arrested by the Arbitration Court of the Kaliningrad Region. By its decision the court granted claims for the protection of exclusive rights to the SONY trademark to “Sony Corporation”. LLC "PAG" was prohibited from importing, selling or otherwise introducing into the civil circulation in the territory of the Russian Federation, as well as storing the said SONY products for this purpose. Moreover, the company was charged 100 000 Roubles as a compensation, the goods were confiscated. These decisions were upheld by the appellate and cassation courts.    
Position of the applicant
According to the Civil Code of the Russian Federation, the goods are counterfeit if the trademark is illegally placed thereon. However, the paper for “ultrasound machines” is an original product, officially produced by “Sony Corporation”, which means that there is no fact of illegal placement of the trademark. At the same time, it is permissible to apply the same sanctions (withdrawal from circulation, destruction and collection of compensation) either to counterfeit goods marked with a foreign trademark and sold without the consent of the right holder, or to original goods legally introduced into the civil circulation of another country by the right holder or its official distributor, but imported into Russia by another importer (a parallel import). Thus, the constitutional principles of legal certainty and fairness, as well as inviolability of private property are violated.
Proceeding from this, the applicant believes that the impugned provisions contradict Articles 1, 7, 17, 18, 19, 35, 55 of the Constitution of the Russian Federation.
    
Presiding Judge Valery ZORKIN
Judge Rapporteur Gadis GADZHIEV
 
 
 
 

 

14 December 2017



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