Administrative liability for the sale of counterfeit products. Why is counterfeit dangerous?

In recent years, the number of economic offenses in Russia has increased, including trade in counterfeit goods. Responsibility for such acts is provided for in the Code of Administrative Offenses and a number of other regulations. For example, in the Russian Federation there is a Federal Law “On Customs Regulation” (311-FZ). Article 183 of this law provides for liability as a measure.

Counterfeiting of products entering the domestic market contributes to the shadowing of economic relations, significantly slows down the development of conscientious producers, and creates risks for the health and life of the population.

Features of terminology

The main factor behind large-scale counterfeiting of products is the presence of the shadow sector in the economy. In terms of the volume of its production, it can well be considered a parallel economy.

In the media, some legal publications and a number of regulatory documents, the terms “counterfeit” and “falsified” product are often used interchangeably. Meanwhile, from a legal point of view, these are independent concepts.

The word "counterfeiting" has Latin roots. Literally it translates as "fake". Counterfeiting is the illegal use of brand names to make a profit in the production and sale of products similar to those of well-known manufacturers.

Counterfeiting refers to actions aimed at deceiving consumers by falsifying the object of a purchase and sale transaction. In a broad sense, it can be considered as illegal actions, the purpose of which is to deteriorate certain properties of the product, reduce its quantity while maintaining the same characteristic indicators that are not significant for the buyer.

Normative base

Concept counterfeit goods was first enshrined in Law No. 3520-1 of 1992. Article 4 of this regulation defined objects that are considered counterfeit. The norm, in particular, states that products, their labels and packaging on which a trademark or a designation confusingly similar to it is illegally placed are counterfeit.

Law No. 5351-1 of 1993 includes phonograms and copies of works whose creation or distribution infringes copyright into the category of counterfeit products.

Specifics of violations

Counterfeit can be expressed in illegal use, copying of brands, violation of copyright in the form of illegal replication of software products, books, video and audio recordings.

A counterfeit has various properties that, to one degree or another, affect the interests of copyright holders and buyers. The price and quality of such products may vary, but all counterfeit products are united by a common feature - a trademark belonging to the copyright holder is used illegally to mislead consumers and extract maximum profit.

Most often, consumer goods that have conquered the market and are popular among the population are counterfeit. Among the huge abundance of products, it is quite difficult to identify counterfeits. As a rule, there are copies of the brands of the most famous manufacturers on the markets.

Sales Features

Original and fake may be in the same store and even on the same shelf. However, as a rule, counterfeit goods are sold second-hand in online stores, kiosks, fairs, and small retail outlets.

The geography of sales may be different: one is sold in the capital and nearby areas, the other is sold at a considerable distance from the center. In the first case, fraudsters seek to maximize profits, in the second, to minimize risks.

Price

Few consumers know. However, there are a number of signs, knowing which you can protect yourself. The first thing you need to pay attention to is the price. Original products are of high quality. The price is set accordingly. At the same time, it can be of high quality and be expensive. At the same time, neither sellers, nor, especially, consumers will even guess about the nature of the product.

The same cost for original products and counterfeit goods will be even if the “mixing” method is used, that is, mixing. For example, a camouflage company first purchases a small batch of original products and sells them. Subsequently, using the documents for it, the company begins to promote the counterfeit to the market.

Explicit sign of a counterfeit product is a reduced price. The low cost is due to the lack of costs for advertising, taxes, certification, and modern production equipment.

It is worth saying, however, that in relation to a low-cost product it is somewhat incorrect to talk about deceiving consumers. The fact is that the buyer, purchasing a cheap counterfeit product, is influenced by the brand, and not by the consumer qualities of the product.

Import and Export Relationship

On the “black” market for counterfeit products, there is a kind of division of labor. For example, counterfeit cigarettes produced by domestic manufacturers are usually exported. This is due to the difference in their prices on the Russian and Western markets. As for counterfeit medicines, they are mainly imported to Russia.

Statistics show that the over-the-counter pharmacy segment reaches 63%. There are about 7 thousand wholesale enterprises operating on the domestic market. In Germany, for example, there are only 10 distributors, and in France - 4.

Often, in order to sell a counterfeit product, it needs to be given the status of an imported product. This is a mandatory requirement for legal sale if the original product is not produced in the country. In such a situation, fictitious exports and then legal imports occur. This scheme was used by Bryntsalov’s company, which counterfeited goods from a company that did not have its own production in the Russian Federation. It was possible to penetrate the legal network of pharmacies with documents simulating the import of counterfeit medicines.

Methods for identifying counterfeit and falsified goods

To understand whether an object is counterfeit, it is necessary to determine its compliance with the mandatory requirements established in regulations. To solve this problem, it is necessary to have standards describing the characteristics and main indicators of the product, means and methods of testing it. However, in many regulatory and technical documents such data is advisory and not mandatory.

A mandatory property of any product is its safety. However, a product may not pose a danger to consumers, but at the same time be counterfeit.

So how to distinguish a fake from the original visually is not always possible; in practice, the following methods are used:

• Organoleptic.
• Registration.
• Measuring.
• Calculated.
• Expert.

Characteristics of methods

The first are based on the abilities of the human senses (hearing, smell, etc.). Organoleptic methods for identifying counterfeits are simple, but not always objective. As a rule, they are used in trade.

The registration method involves observing and counting the number of objects, phenomena, and costs.

Quality indicators are determined by calculation.

The measurement method is considered the most objective. When using it, you can get fairly accurate results. Determination of indicators is carried out using special measuring tools. To use this method, highly qualified specialists and large financial investments are required. Measurements also take quite a lot of time. However, today express analysis and non-destructive testing methods are becoming increasingly popular.

Expert techniques for identifying counterfeits are based on the conclusions of a group of specialists.

Measures to curb the import of counterfeit goods

For some types of products, copyright holders set relatively low prices. On the one hand, the relatively small incomes of Russian consumers are taken into account, on the other, the desire to conquer the domestic market becomes a strategic goal of foreign manufacturers.

However, low prices are the privilege of official dealers. A “gray” importer who purchases goods abroad finds himself in extremely unfavorable conditions. For example, when the fight against smoking began in Europe, tobacco companies began to actively move their products to the Russian market. As a result, Russia has established relatively low prices for cigarettes compared to Western countries. Such a price difference ensured protection of the domestic market from “gray” imports. An increase in the cost of tobacco products in Russia may lead to increased flows of counterfeit tobacco products.

Some copyright holders are trying to synchronize discount schedules and establish sales accounting in the domestic market. With such control, any sudden large purchase will attract attention.

Technical means are also used in the fight against “gray” imports. For example, branded products for Russia are produced in packaging of a certain shape, in special bottles, etc.

Quite often, official dealers themselves identify “gray” importers. After this, different options are possible:

• Initiation of cases by law enforcement agencies.
• Mutually beneficial cooperation between dealer and importer on a legal basis.

Participation of the Federal Customs Service in the fight against counterfeiting

Recently, the state has tightened liability measures for “gray” importers. They are implemented mainly by the Customs Service.

When a shipment of counterfeit goods is detained, the control authority notifies the copyright holder. He, in turn, has the right to initiate administrative or criminal proceedings against the importer.

Since 2008, the FCS has intensified its fight against unscrupulous suppliers. The customs service was given the opportunity to initiate cases independently, without waiting for a reaction from copyright holders. At the same time, courts increasingly began to recognize “gray” imports as illegal. As a result of the measures taken, the supply of counterfeit goods has significantly decreased in volume.

Imitation products

They are called goods produced with stylistic borrowing or copying of some elements of the trademark of a well-known manufacturer. Simply put, a certain company produces a product that is very similar in appearance and name to a popular brand in order to mislead consumers. For example, in stores you can find Taft and Taff hairsprays, cosmetic products from the Nivea and Livea brands. Outwardly they look almost the same.

Many businesses seek to use the popularity of well-known companies to increase their own sales. The release of counterfeit products can be carried out not only by companies unknown to the copyright holder, but also by their business partners. The pursuit of big profits often leads to litigation. Former partners begin to dispute ownership of a famous brand. As a rule, as a result of a dispute, the imitation trademark is liquidated.

What else should you pay attention to?

A key sign of counterfeit products is the lack of permits. The supplier is obliged to provide dealers with a copy of the agreement, according to which the trademark or logo is assigned to it.

If the company is not a manufacturer of the product, it must still have permits from the manufacturer.

In addition, the product must be accompanied by:

• Copies of the quality certificate (compliance with standard requirements), certified in the prescribed manner.
• Invoices, invoices and other accompanying documents.

Additionally

The supply agreement must contain a provision guaranteeing the legality of the products produced. A separate clause should establish the rules and conditions for compensation for losses that may arise from the acquirer when claims are presented to him by control authorities.

Counterfeit refers to counterfeit goods, not necessarily of poor quality, but not manufactured by the same manufacturer as indicated on the label.

Let us immediately distinguish between two similar terms that many use as synonyms - counterfeit and falsification. The first is understood as a violation of intellectual rights, and the second is a violation of production technology.

However, in some areas, for example, in the field of trade in alcohol and tobacco products, these concepts are similar. If an attacker sticks someone else's logo on a product, then it is a low-quality product.

What signs can be used to identify a fake, and what the consequences for trading in such goods are - we will tell you further.

What is counterfeit?

It is understood as a product manufactured based on an existing original, but manufactured in violation of copyright.

This concept may include clothing, furniture, cosmetics, technical devices, food, alcohol, etc.

Also, the definition of this term is given in the Code of Administrative Offenses of the Russian Federation - these are products whose label or packaging contains an illegally applied trademark or name of the place of origin of the product.

Counterfeiting is conducting a “business” under someone else’s name, illegally using someone else’s patent in the manufacture and sale of goods.

Signs of counterfeit products

Criminals create counterfeits by making a product similar in appearance with the logo of an existing brand on the market. However, the characteristics and properties of the product are many times worse compared to the original. In some cases, such products are hazardous to health.

Counterfeiting in Russia is a fairly common phenomenon, but a fierce fight is being waged against it. Most often this problem concerns alcohol and tobacco. They are often sold without excise stamps. This is one of the signs of a fake.

Let's look at what you should pay attention to in order not to buy a fake:

• do not purchase products from dubious places, especially directly;
• labels must be glued evenly, there should be no distortions;
• The packaging must have a tax stamp.

Before purchasing, carefully inspect the label and packaging. Lack of markings is a sign of counterfeit.

Types of counterfeit

Criminals can counterfeit not only goods, but also certificates of quality and conformity, safety, and trademarks.

Sometimes some components of the product are replaced with others, the variety is manipulated, etc.

Types of counterfeit products are distinguished by product category. Anything can be counterfeited and presented under someone else's trademark: water, watches, food. Let's look at the most common ones.

Medicines

In this area, the problem of counterfeiting most often arises. Drugs often appear on the market with false labels indicating their authenticity, manufacturer, and country of production. Purchasing such medications can be dangerous.

Buy medications only from licensed pharmacies.

Tobacco products

The statistics are disappointing - in the last year alone, counterfeit cigarettes were found in every eighth store in Russia.

Of course, retailers will suffer the most losses. They will miss tens of billions of rubles in profit. The country's budget will also become poorer.

The responsibility for trading in such tobacco is quite serious, but in the pursuit of profit, many criminals forget about it.

Alcohol products

Counterfeit alcohol is closely related to the concept of counterfeit. Often we are talking about violations of production technology. At the same time, labels from well-known manufacturing companies are often affixed to ordinary bottles in order to inspire confidence among buyers.

The original product is prepared from high quality alcohol. To produce counterfeits, industrial alcohol is used, which contains formaldehyde and formic acid. In most cases, such products are bottled in unsanitary conditions.

Every year in Russia hundreds of people die from counterfeit products.

Clothes

As an example, let’s take the well-known Adidas brand.

The products of this company are expensive and of high quality. In pursuit of “easy” money, criminals change the letter in the name and sell low-quality items under the same logo, but only the name sounds like Abibas. For a person unfamiliar with the English language or simply inattentive, these words are similar.

As a result, damage is caused to both the buyer who pays for the counterfeit and the owner of the trademark that is being misused.

Most often, clothes from well-known brands are counterfeited.

Spare parts

In the auto spare parts market, counterfeit products have an interesting feature. Within the framework of customs legislation, this definition includes original products, but brought to the Russian Federation by a company without the official permission of a trademark representative.

When buying auto parts from a dubious seller, remember that no one will give you any guarantees that these are original products.

In copyright

We are talking about the production of tangible media with music or films without the consent of the copyright holder. Accordingly, the latter does not receive the due remuneration. Art. is devoted to this type of forgery. 146 of the Criminal Code of the Russian Federation.

Responsibility for distribution and trade of counterfeit goods

Criminal and administrative liability has been established for trade in counterfeit goods.

For the manufacture, purchase, storage, transportation and sale of products without labeling and in large quantities (over 400 thousand rubles), the violator is liable under Art. 171.1 of the Criminal Code of the Russian Federation. He faces:

• fine up to 300 thousand rubles. or confiscation of income for a period of up to 2 years;
• forced labor for up to 3 years;
• prison term up to 3 years with a fine.

If the crime was committed by an organized group, or the cost of the goods exceeded 1.5 million rubles, the fine may increase to 500 thousand rubles, the term of forced labor - up to 5 years, the period of imprisonment - up to 6 years with a fine of millions.

Which standard will be used depends on the damage caused.

In addition, sanctions for counterfeiting threaten under Art. 180 of the Criminal Code of the Russian Federation. It establishes liability for the illegal use of means of individualization.

This applies to cases where criminals counterfeit someone else's trademark or other designation. A prerequisite for bringing to justice is the infliction of major damage - more than 250 thousand rubles.

The court may sentence the offender to:

• a fine of up to 300 thousand rubles;
• compulsory work up to 480 hours;
• correctional labor for up to 2 years;
• forced labor for up to 2 years;
• imprisonment for up to 2 years with a fine of up to 80 thousand rubles. or with confiscation of the convicted person’s earnings for six months.

You can be punished for counterfeiting under Art. 147 of the Criminal Code of the Russian Federation. It is dedicated to the violation of inventive and patent rights. The crime is expressed in the illegal use of an invention, industrial design, misappropriation of authorship.

Without aggravating circumstances, attackers face a fine of up to 200 thousand rubles. or in the amount of income for 18 months, compulsory work up to 480 hours, forced labor or imprisonment up to 2 years.

For counterfeiting goods, you can not only pay a high fine, but also be sent to prison for up to 3 years.

Punishment for counterfeiting in copyright law

If criminals illegally use copyrighted objects, transport, purchase or store counterfeit products on a large scale (over 100 thousand rubles), they face sanctions under Art. 146 of the Criminal Code of the Russian Federation:

• fine up to 300 thousand rubles. or confiscation of 18 months' income;
• compulsory work up to 480 hours;
• correctional, forced labor or imprisonment for up to 2 years.

The punishment will be more severe if the crime was committed by a group of persons in conspiracy, an organized group, on a particularly large scale or using their official position.

For plagiarism, you can look at the world through the bars of a prison cell for 2 years.

Fine

The Code of Administrative Offenses of the Russian Federation also establishes liability for counterfeit goods. For example, according to Art. 14.10 for the unlawful use of personalization means you can receive a fine of up to 10 thousand rubles. with confiscation of products.

If the ultimate goal of the attackers was to sell the goods, a fine will be imposed in the amount of twice the cost of the batch or unit of production (but not less than 10 thousand rubles). Confiscation also applies.

The sanction is also contained in Art. 15.12 Code of Administrative Offenses of the Russian Federation. You can get a fine for making products without markings. For officials it will be 5-10 thousand rubles, for legal entities - 50-100 thousand rubles.

Selling counterfeit goods is punishable under this article with a fine:

• for citizens- up to 4 thousand rubles;
• for officials- up to 10 thousand rubles;
• for companies- up to 300 thousand rubles.

If criminals have produced alcohol or tobacco without labeling, but trade in such products is not subject to criminal liability, they face a fine:

• for citizens- up to 5 thousand rubles;
• for officials- up to 15 thousand rubles;
• for companies- up to 300 thousand rubles.

In essence, counterfeiting is theft. Therefore, it is worth seeking justice and bringing violators to justice.

"Financial newspaper. Regional issue", 2007, N 38
WHAT IS THE RISK OF SALE OF COUNTERFEIT PRODUCTS
Organizations and individual entrepreneurs selling goods at retail have recently increasingly become the object of inspections by regulatory authorities for compliance with trademark law. During such inspections, counterfeit goods are often identified. What consequences might this situation have for the seller?
The concept of counterfeit products
In accordance with paragraph 2 of Art. 4 of the Law of the Russian Federation of September 23, 1992 N 3520-1 “On Trademarks, Service Marks and Appellations of Origin of Goods” (hereinafter referred to as the Law on Trademarks), counterfeit goods are goods, labels, packaging of these goods on which a trademark or a designation confusingly similar to it.
In this case, a violation of the exclusive right of the copyright holder (illegal use of a trademark) is the use without his permission in civil circulation on the territory of the Russian Federation of a trademark or a designation confusingly similar to it in relation to goods for the individualization of which the trademark is registered, or homogeneous goods, in including placement of a trademark or confusingly similar designation:
on goods, on labels, packaging of these goods that are produced, offered for sale, sold, displayed at exhibitions and fairs, or otherwise introduced into civil circulation on the territory of the Russian Federation, or stored and (or) transported for this purpose, or imported into territory of the Russian Federation;
when performing work or providing services;
on documentation related to the introduction of goods into civil circulation;
in offers for the sale of goods;
on the Internet, in particular in the domain name and other addressing methods.
Thus, the offer for sale and sale of goods with an illegally placed trademark on them are independent types of violations of the exclusive rights of the copyright holder.
As practice shows, the most “risky” for the seller are goods that bear well-known trademarks. As a rule, it is in relation to these goods that regulatory authorities carry out inspections. Accordingly, an entrepreneur or organization that retails goods with well-known trademarks should exercise special caution when purchasing them. In particular, in relation to these goods, the seller must obtain the following documents from the supplier:
1. A copy of the license agreement establishing the right to use the trademark in relation to the relevant goods (Articles 22, 26 of the Trademark Law). Such an agreement can be concluded either directly with the supplier or with the manufacturer (if the supplier is not the manufacturer of the goods).
It must be taken into account that the license agreement is subject to mandatory registration with the federal executive body for intellectual property. In this case, a corresponding mark is made on the contract indicating the date of registration and registration number (Article 27 of the Trademark Law). Without registration, the specified agreement is considered invalid.
2. A copy of the certificate of conformity for the product, certified in the prescribed manner. This document is not directly related to the right to use a trademark, but indirectly confirms the legality of the origin of the product.
3. Properly executed documents for the supply of relevant goods (supply agreement, delivery notes, invoices, etc.).
In addition, the supply contract should include a provision according to which the supplier guarantees the legality of the origin of the goods, the legality of the use of the trademark on the goods, and also undertakes to compensate the buyer in full for losses and costs associated with possible claims of regulatory authorities in relation to the goods supplied.
Who is responsible for the offense
Responsibility for the sale of counterfeit products is established by Art. 14.10 of the Code of Administrative Offenses of the Russian Federation, which provides for significant administrative fines with simultaneous confiscation of goods containing a reproduction of the trademark. In this case, the subject of liability, depending on the presence of signs of guilt, can be either an individual entrepreneur, a legal entity on which the corresponding retail trade facility is registered (shop, kiosk, retail space, etc.), or officials - the head of the legal entity, the manager store, etc.
It is not excluded that two entities may be brought to administrative liability at the same time, for example, a legal entity and its director (according to paragraph 3 of Article 2.1 of the Code of Administrative Offenses of the Russian Federation, the imposition of an administrative penalty on a legal entity does not relieve a guilty individual from administrative liability for this offense, as well as bringing to administrative or criminal liability of an individual does not relieve a legal entity from administrative liability for this offense).
If the illegal use of a trademark occurs repeatedly or causes major damage, criminal liability may arise under Art. 180 of the Criminal Code of the Russian Federation. In this case, major damage means damage exceeding RUB 250,000.
Responsibility of a bona fide seller
An interesting situation from a practical point of view is when the seller, when purchasing a product from his supplier, does not assume that it is counterfeit, while there are no obvious signs of counterfeit on the product itself. Can the seller in the above situation (when further selling goods at retail) be held liable?
When answering this question, one should take into account the mandatory provisions of the law that establish the necessary conditions for bringing to responsibility.
So, according to paragraph 1 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, an administrative offense is recognized as an unlawful, guilty action (inaction) of an individual or legal entity for which administrative liability is established by the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses.
In accordance with paragraph 2 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, a legal entity is found guilty of committing an administrative offense if it is established that it had the opportunity to comply with the rules and norms, for violation of which the Code of Administrative Offenses of the Russian Federation or the laws of a constituent entity of the Russian Federation provides for administrative liability, but this person did not take all the consequences of him measures to comply with them.
Thus, when considering the issue of the seller’s liability for the sale of counterfeit goods, two situations can be roughly distinguished.
Situation 1. The seller has all the necessary documents confirming the purchase of goods (delivery agreement, delivery notes, invoices). In addition, they received from the supplier a duly certified copy of the certificate of conformity for the delivered goods and a copy of the license agreement for the use of the trademark.
In this case, in our opinion, the seller cannot be held legally liable for selling counterfeit goods, since he took all necessary and possible measures to comply with trademark law and exercised the necessary diligence and caution. At the same time, the current legislation does not provide for a mandatory examination of the goods purchased from the supplier to determine the legality of its origin.
This conclusion is confirmed by arbitration practice. For example, the Federal Antimonopoly Service of the Ural District, in Resolution No. F09-1363/05-AK dated April 13, 2005, indicated that the company, when purchasing a counterfeit product with a trademark already placed on it, without being its manufacturer, did not take any action to introduce this goods into civil circulation on the territory of the Russian Federation. Accordingly, it cannot be held liable under Art. 14.10 Code of Administrative Offenses of the Russian Federation for illegal use of a trademark.
Similar conclusions are contained in Resolutions of the FAS of the East Siberian District dated 05.10.2006 N A33-12155/05-Ф02-2047/06-С2, FAS of the Ural District dated 08.30.2004 N F09-3480/04-AK, FAS of the Central District dated 30.01 .2007 N A68-2237/06-150/15.
Situation 2. The seller, when purchasing goods from the supplier, did not show due diligence and caution, did not require documents confirming the quality and legality of the origin of the goods, as well as the legality of using the trademark.
In this case, the seller may be held liable, despite the fact that he was not aware of the counterfeitness of the goods. Thus, the Federal Antimonopoly Service of the Central District, in Resolution No. A08-8189/06-7 dated May 4, 2007, confirmed the legality of bringing an entrepreneur to administrative liability under Art. 14.10 of the Code of Administrative Offenses of the Russian Federation for the sale of counterfeit goods (the manufacturer of which the entrepreneur was not), since the entrepreneur, when purchasing it, did not take the necessary and possible measures to verify the legality of the origin of the goods and the legality of using a trademark on the product (see also Resolutions of the Federal Antimonopoly Service of the Central District dated 12.02. 2007 N A48-3770/06-15, FAS Far Eastern District dated 04/26/2006 N F03-A51/06-2/498, dated 12/27/2006 N F03-A51/06-2/4682).
A. Zhigachev
K. Yu. n.,
legal adviser
OJSC "Pokrovsk-Lada"
Signed for seal
19.09.2007

Art. 171.1 of the Criminal Code of the Russian Federation establishes liability for counterfeit products, namely the production, acquisition, storage, transportation or sale of goods and products without labeling or application of information provided for by the legislation of the Russian Federation. On the territory of the Russian Federation, counterfeit products are punishable by law. This article of the Criminal Code of the Russian Federation causes a lot of controversy regarding its legal application. Today, the problem of trade in counterfeit products is topical and most often concerns counterfeit alcohol and tobacco. The degree of public danger is easy to assess if you look at how regularly the media cover news about mass poisonings with counterfeit alcohol.

For a better understanding of the mechanism of how counterfeit is pursued by the Criminal Code of the Russian Federation, it is advisable to start with basic concepts:

1. Excise duty is a type of tax levy levied on monopoly goods with a high degree of profitability.
2. Excise stamps are used to mark products subject to excise duty.
3. Special stamps indicate the legal origin of the product.
4. The mark of conformity is another type of marking that confirms that the purchased product meets the required standards.

The production and use of counterfeit brands and signs is punishable by criminal law. Goods sold in Duty free stores are exempt from paying excise duty.

The disposition of the legal norm under consideration does not name specific signs of an atrocity, but refers to other normative legal acts to establish them.

The Code of Administrative Offenses provides for punishment for the same acts under Art. 15.12 Code of Administrative Offences. The difference between an administrative offense and a criminal offense lies in the amount of damage caused.

The subject of the offense is the entire assortment, which is subject to mandatory labeling. This also includes alcohol and tobacco products, jewelry, precious stones, some types of raw materials and more. The presence of an excise stamp on the packaging gives the buyer a guarantee of the legality of its origin. In our country, excise taxes are imposed only on a certain group of goods - alcohol with an ethyl alcohol content of over 9%, tobacco. In addition, imports imported from the CIS countries are marked with a conformity mark, which means that the products meet the required quality standards.

The objective side of the offense has several forms of expression. For example, the production of counterfeit goods, its acquisition, sale or distribution, as well as transportation.

Often difficulties with the qualification of a crime arise when determining the subjective side, when proving intent. At the same time, the intent must consist of the person’s desire to sell prohibited products. If intent is not proven, the actions of the accused will be classified as illegal business.

The subject is an individual or a group of individuals who have organized a sales line for counterfeit products. For committing a crime provided for by the rule of law in question, there is a rather severe punishment.

In the current version, the legislator has provided for the following types of criminal liability:

• fine;
• a fine in the amount of wages or other income for a certain period;
• imprisonment for up to 6 years;
• forced labor.

In addition, the court may impose a combined sentence. The size of the fine, the term of imprisonment and the amount of forced labor vary depending on the qualification of the criminal act. The legislator identifies the commission of this offense by an organized group, as well as on a particularly large scale, as qualifying circumstances.

The main problem with the application of the legal norm in question is the lack of consensus regarding the object of the crime. Most often, an object is understood directly as the process of manufacturing and circulation of products, which are marked in the prescribed manner in the course of business activities.

Chelyabinsk City Court 05/18/2017 under Part 5 of Art. 171.1 of the Criminal Code of the Russian Federation, citizen M was convicted. As punishment, the defendant was given a fine in the amount of 200,000 rubles.

Citizen M. was found guilty of intentionally purchasing from an unidentified person strong drinks, bottled in various sizes, without any accompanying documents confirming the legality of origin, for the purpose of subsequent sale. In addition, during the investigation it was established that the accused was in possession of these products. An expert opinion was attached to the case materials, confirming the fact that the alcoholic beverages in M.’s storage are unlabeled and prohibited for sale, i.e. counterfeit. The volume of seized products and their estimated value made it possible to qualify M.’s actions as the acquisition and storage for the purpose of further sale of counterfeit goods on a large scale. The accused has fully admitted his guilt and has written a confession. Taking into account all the circumstances, the court sentenced the accused M. to a fine.

The above example clearly demonstrates how the qualification of an act under Part 5 of Art. 171.1 may not lead to a real conclusion, but may be limited to imposing a fine.

Recently, there has been a tendency towards an increase in the number of crimes in the counterfeit alcohol market. This applies directly to the sale of counterfeit goods and the production of counterfeit excise stamps and marks of conformity.

By increasing excise taxes, the state pursues its own interests. But we should not forget that there is a danger of an increase in those wishing to evade taxes and earn money underground.

Violating the requirements of the law, criminals with their illegal actions:

• Encroach on the established procedure for taxation of excisable goods;
• violate the economic scheme of production;
• put the health of ordinary consumers at risk, since alcohol production requires a high degree of quality control.

Another case from judicial practice shows a slightly different outcome of a criminal case.

On December 24, 2015, the Golovinsky District Court of Moscow passed a verdict against a group of persons G., M., L., under clauses “a”, “b”, part 6 of Art. 171.1 of the Criminal Code of the Russian Federation. The defendants were sentenced to imprisonment for a period of 3 years. The prescribed measure was applied conditionally.

During the trial, it was established that the defendants, by prior conspiracy, purchased unlabeled alcoholic beverages on a particularly large scale from third parties for the purpose of further selling and making a profit. In addition, to organize their criminal activities, the defendants created an Internet site on which they sold “gray” alcohol.

During the investigation, the defendants admitted their guilt completely and repented of their deeds. Taking into account all the circumstances of the case, the court came to the conclusion that the defendants were guilty, but at the same time did not apply to them a real prison term and an additional penalty in the form of a fine. The fact that the defendants acted by prior conspiracy aggravated their situation and the composition was qualified under Part 6 of Art. 171.1 of the Criminal Code of the Russian Federation.

Police officers checked an entrepreneur who was selling clothes in a store. The inspectors found that the T-shirts had a logo in the form of a crocodile with the inscription LACOSTE. The police determined that the entrepreneur does not have the right to use such a trademark. In this regard, police inspectors turned to the Arbitration Court to fine the businessman and confiscate the goods.

Situation

On May 26, 2015, police checked an entrepreneur who sells clothes in a store located on the Vologda market. It turned out that the businessman sold 15 T-shirts with the LACOSTE logo in the store, purchased from a third-party seller. The total cost of sold T-shirts with the logo of a famous company was 4,485 rubles.

Arguments of the inspectors

The right to the LACOSTE trademark belongs to the French company LACOSTE S.A. In Russia, the representative of this company is the law firm “Shevyrev and Partners”.

Sellers do not have the right to use logos similar to someone else’s trademark without the permission of the copyright holder. The entrepreneur does not have documents confirming that he sells clothing with the logo of a well-known company with its consent. The clothing retailer should have checked whether the T-shirt manufacturer was using someone else's trademark legally or not.

Therefore, an individual entrepreneur needs to pay an administrative fine for using someone else’s trademark under Article 14.10 of the Code of Administrative Offenses of the Russian Federation. The amount of the fine for individual entrepreneurs ranges from 10,000 rubles to 50,000 rubles. with confiscation of illegally sold goods.

Judges' findings

The judges agreed with the inspectors. Indeed, the entrepreneur sold clothes under a well-known trademark illegally. Therefore, the businessman will have to pay a fine of 50,000 rubles with confiscation of goods worth 4,485 rubles. The businessman must pay the fine within 60 days from the date of entry into force of the court decision