A trademark is represented by the name or symbol of different goods or services. Due to it, different products differ from similar products produced by other manufacturers. To use such a mark requires its competent registration. Often, large manufacturing companies are faced with the illegal use of a trademark registered by them. This action is a significant offense for which administrative and criminal liability is provided.
Trademark concept
In another way, it can be called a brand or a trademark. It is represented by a certain sign of individualization of a particular company or direct product. Its application is an effective marketing technique, on the basis of which the prestige of the brand and the enterprise as a whole is improved.
For the formation of a trademark, various elements can be used:
- a text represented by different words, names or names that have an original and unique meaning;
- a combination of several letters;
- Pictures, images, abstract drawings or other logos;
- volumetric compositions;
- other signs represented even by sounds or a combination of different shades.
Experienced marketers are aware of the value of using the brand, as products are selling much better through its use. Therefore, the illegal use of a trademark is a serious offense. Under such conditions, fraudsters try to take advantage of the fame and relevance of any company in order to sell low-quality goods due to its good reputation.
The concept of illegal use
The illegal use of a trademark means that fraudsters organize the production and sale of goods under a foreign brand. In this case, they can set a high price for low-quality products, which at the same time are popular due to the brand.
Such violations are presented using the methods of unfair competition. But they are revealed only when applying correctly registered signs, for which a special certificate is issued.
Fraudsters in the illegal use of a trademark receive high profit, because due to the well-known brand they quickly sell low-quality goods at a high price. They do not need to win the interest of buyers, and also do not need to advertise their products.
All products released under the brand name are called counterfeit. Most often, such a scheme is used in the production of clothing, shoes or accessories. Manufacturers of such goods do not bear the costs associated with advertising and product promotion. Therefore, the cost is significantly reduced with low quality products.
The nuances of the offense
Illegal use of someone else's trademark is a serious offense. This process has some features:
- the object of violation is the process of applying someone else’s brand, as well as the use of addresses where the original goods are produced;
- subjects are companies that use illegal methods to sell their products, so they use foreign brands to stimulate sales.
The subjects of violation may be individual entrepreneurs or heads of various companies involved in the production and sale of goods under a foreign brand. Under the Code of Administrative Offenses of the Russian Federation, the illegal use of a trademark is represented by a deliberate act of an enterprise.
How are trademarks protected?
Many companies with a well-known and unique brand, try in different ways to protect it from unscrupulous competitors. To minimize the number of fakes, enterprises use the individualization of the product through TK.
The right to apply the brand to only one company is vested in the company only after state registration of the mark. Based on this process, a special registration act is provided to the organization. It is this document that provides optimal and effective protection for the words, images or other designations used in the brand. Under these elements, different goods or services in the market are involved.
How to legalize a trademark?
The procedure for correctly registering a unique brand is to perform several successive steps. Only after passing through the process is it possible to hold other companies or individuals accountable for illegal use of the trademark.
The procedure is divided into stages:
- the optimal sketch of the trademark is initially developed and approved, and it is advisable to use the recommendations provided by the patent attorney;
- after the organization applies to Rospatent;
- the necessary package of documents is transferred to the institution, which includes a correctly prepared application, approved sketches in the form of text, images or other designs;
- a list of goods to be produced with this trademark is necessarily provided, and this list is formed on the basis of the requirements of the ICGS;
- for registration will have to pay a state fee, and the receipt is transferred to Rospatent;
- after the registration process, the company receives a certificate on the basis of which it can protect its brand from unscrupulous competitors.
Proper registration allows you to hold other companies responsible for the illegal use of a trademark that are trying to profit from the fame of a particular product and brand.
How long is the certificate granted?
A certificate is issued for 10 years, and at the end of this period the document can be extended. During this period, it may be necessary to modernize or partially change the logo, so the new form must necessarily be correctly legalized.
Each company with a well-protected trademark can count on the attractiveness of its activities and products for investors.
Types of Responsibility
If companies illegally use registered trademarks, then they must be held liable. It can be presented in several forms.
The practice of illegal use of a trademark indicates that significant fines are usually levied on citizens, but quite often dishonest business leaders are even held criminally liable.
The content of the decision of the Plenum of the Supreme Court No. 14
In 2007, the Resolution of the Plenum on the illegal use of a trademark was approved. It contains basic recommendations for judges, which they should use when considering cases related to trademarks. Based on this legislative act, the nuances are taken into account:
- according to the Criminal Code of the Russian Federation, the unlawful use of a trademark should be punished by holding the company managers criminally liable;
- the verdict must indicate which rights are being violated;
- copyright applies not only to published works and signs, but also to non-published;
- based on Art. 146 of the Criminal Code, the willful application of different rights is taken into account, since if a trademark is used without malicious intent, this is a mitigating circumstance;
- criminal liability is used if violators use a foreign brand in order to sell their own products;
Therefore, all judges must take into account the provisions of this Order in order to make the right decisions regarding such cases.
Civil law
If companies use foreign brands, then they can be prosecuted under Art. 1515 and Art. 1537 Civil Code. These legislative acts imply the use of different penalties:
- Compensation for damage to the owner of the registered mark;
- seizure of goods or packaging, on which there is a foreign image or mark;
- all drawings or designs where there is a trademark officially registered by another company are liquidated.
The court decision is necessarily published in open sources, which makes it possible to restore the reputation and prestige of the company whose trademark was illegally used by other organizations.
Administrative
Additionally, liability information is written regarding the illegal use of a trademark in the Code of Administrative Offenses. Basic data are contained in Art. 14.10 Administrative Code. If only a single violation is detected, then a significant fine will be imposed as a punishment:
- officials pay from 3 to 4 thousand rubles;
- a fine of 30 to 40 thousand rubles is levied on the company itself.
At the same time, the confiscation of goods bearing a foreign trademark is carried out.
Criminal
The most stringent is criminal liability. For the illegal use of a trademark under the Criminal Code of the Russian Federation, it is possible to impose significant fines or even arrest. Such measures are applied in relation to malicious violators or when causing substantial harm.
To apply different penalties, the provisions of the law are taken into account:
- if the brand owner has encountered damage from 250 thousand rubles., then under Art. 180 of the Criminal Code of the Russian Federation, the illegal use of a trademark leads to the application of a fine of up to 200 thousand rubles to the violator;
- additionally charged the income of the official received by him within 18 months;
- forced labor may be assigned for a period of 180 to 240 hours;
- punishment in the form of correctional labor, implemented over two years, is often applied.
If it is revealed at all that the violations were committed by an organized group of several people, then more severe penalties are used:
- a fine is imposed, the amount of which varies from 100 to 300 thousand rubles;
- responsible persons are charged an amount equal to their income for a period of one to two years;
- arrest for a period of 4 months to six months is appointed for those responsible;
- in some situations, the court may decide to imprison the guilty for up to five years.
Thus, really significant and severe penalties are imposed for the illegal use of a trademark. Criminal law contains several provisions regarding such a violation of the law. Therefore, all company executives who make decisions regarding the use of someone else’s and correctly registered brand must remember the consequences of such actions.
There is a lot of information in the law regarding how correctly registered trademarks are protected. This is aimed at combating companies that are trying to get high profits due to the fame of other brands.
There are opportunities to legally use someone else's sign, but for this you need to get permission from the direct owner.
Rules for filing a claim
In order to prosecute negligent companies that use a foreign brand for the quick sale of low-quality products, it is required that the trademark owner file a lawsuit.
The document indicates the circumstances under which images or slogans are used by other enterprises. A receipt for payment of the duty is attached to the claim, as well as a certificate confirming that the plaintiff is the direct owner of the brand. When considering a case, the court holds the perpetrators accountable, for which large fines are imposed, and arrest and forced labor are often applied.
Conclusion
Thus, the illegal use by different companies of foreign trademarks is considered a fairly common violation. The main goal of such activities is to promote the sale of not too high-quality and unknown products. For such actions, companies and individual entrepreneurs are brought to administrative, civil and criminal liability.
Penalties depend on the size of the damage and other circumstances of the case. All of them are considered in court, taking into account the provisions of the law.