Parallel import: problems and prospects. The Constitutional Court of the Russian Federation allowed Russian entrepreneurs to parallel import

Good afternoon.

I sell cosmetics online. My product prices are lower than the official ones, because in otherwise I wouldn't be able to compete with the manufacturer itself and retail stores. I do not buy directly from official representative in Russia, but through regional ones.

Is it legal to put pressure on me from an official representative in Russia if I have no agreements with him? They are trying to force me to increase the prices of goods.

What can I do in this case? How to solve a problem? I will be very grateful for the answer.

Answered by Sevan Avalyan, lawyer at Zartsyn Yankovsky and Partners

Hello. This is a serious topic that little is known about. It's called " Parallel import».

What it is

Parallel import is the import of original goods into Russia without the special consent of the trademark owner. Legally, this is called “Exhaustion of the exclusive right to a trademark by the copyright holder” and is enshrined in Article 1487 of the Civil Code of the Russian Federation.

World practice knows 2 generally accepted principles of exhaustion exclusive rights copyright holders: national and international.

According to the national (territorial) principle of exhaustion of rights, the exclusive rights of the copyright holder to a trademark are recognized as exhausted only upon the introduction corresponding product into circulation within a given state.

In human terms, it sounds like this: even if a product has been repeatedly resold in other countries, its import into a country that has a national exhaustion approach is possible only with the permission of the trademark owner. This is exactly the principle that applies in Russia.

According to the international principle of exhaustion of rights (applied in China and other countries), the copyright holder, having sold a product in any country, loses the right to tell the new owners how to dispose of this product in the future.

The new owner independently moves the goods across borders, enter into civil turnover on the territory of other countries and so on.

How does the copyright holder protection mechanism work?

As an example, in 2015, Shell Brands International filed a claim against the Russian company Ravenol Russland LLC. Shell is the copyright holder of some trademarks and labels its products with them. Russian company I bought these products not in Russia and brought them into the country.

Shell filed a claim for a ban on imports and sales in the Russian Federation and for compensation - the court granted the claim. Detailed description, and the solution is .

What should the author do?

Find out from your suppliers how the goods you are selling were imported into the Russian Federation. It is legal if the product was imported into the territory of the Russian Federation by official distributors, with permission or by the copyright holder himself.

At the end of April, Prime Minister Dmitry Medvedev will hold a meeting on the topic of parallel imports, a source familiar with the situation tells Gazeta.Ru. The government intends to legalize parallel imports for two groups of goods - medicines and medical devices, as well as auto parts.

Parallel import involves the import and sale of a branded product by any company that purchased this product from a seller authorized by the copyright holder. This type of import of goods into Russia has been prohibited since 2006, so now the import of goods under a certain brand is permitted only to the copyright holder or an authorized dealer with the written permission of the copyright holder. Otherwise, the exclusive right to a trademark in Russia will be violated.

According to the source, the government is ready to legalize parallel imports from January 1, 2016.

In other words, with next year products of foreign manufacturers of registered trademarks can be imported without the permission of their distribution networks. The representative of the First Deputy Prime Minister believes that allowing parallel imports is an anti-crisis measure aimed at reducing the cost imported products in a complex economic situation. The goal is to reduce the cost of these goods for the consumer.

“Medicines, medical products and auto parts are a sensitive product range for citizens; by legalizing parallel imports, it will be possible to reduce the cost of these goods, for some items - several times. Original goods for people should not come to Russia at monopoly high prices. Their price should not differ from prices in other countries,” emphasizes Igor Shuvalov’s representative.

The government has no fear that parallel imports will flood the market with counterfeit or low-quality products. On the contrary, the segment of original, branded goods will increase. “Stories about the growth of counterfeit goods and forgeries are a predictable horror story.” But keep in mind that goods produced abroad, as a rule, are also sold in other countries where parallel imports are allowed, they are also certified, and also undergo verification procedures,” says a representative of the secretariat of the first deputy prime minister.

Permitting parallel imports will require the introduction of specialized posts at customs equipped with laboratories for analysis medicines, arriving in Russia. According to World Organization healthcare, in Russia the share of counterfeit medicines is 12%. According to experts, the market for counterfeit pharmaceuticals reaches 20 billion rubles.

But companies that have invested in production in Russia are confident that allowing parallel imports will lead to a decrease in their revenue. A source in the Ministry of Industry and Trade gave a similar assessment. According to the department, parallel imports will lead to a reduction in company revenues by 19%.

At the same time, almost 40% of the companies surveyed said that they would consider the possibility of transferring production from Russia to other countries. The survey was conducted long before the introduction of Western sanctions against Russia.

The government does not deny this argument, but the interests of the consumer are called a priority and are placed above the interests of departments. “Nobody wants unexpected burdens for entrepreneurs - importers of branded goods - a period will be set for them during which they will have to localize production in Russia,” says a representative of the secretariat of the first deputy prime minister.

For local manufacturers, it is proposed not to extend parallel imports to goods whose production is localized by the copyright holder in Russia. That is, equal conditions will remain for imported and local products. “Copyright holders and suppliers of foreign brands will be given time to adapt. Nobody wants to ruin their business. But these companies are already operating in other countries where parallel business is allowed. Parallel import is a recognized world practice“, clarifies Shuvalov’s representative.

Adaptation period for foreign companies invested in Russia may be extended for a period preferential taxation, set for this company by the government. But after grace period the company will be required to operate in a competitive environment at general principles, suggests another federal official.

The opinion that parallel imports can bring down prices, including for medicines, is shared by Andrei Kashevarov, deputy head of the FAS. “For some items, prices may decrease not just by tens of percent, but by several times,” says Kashevarov.

According to the Eurasian economic commission, auto parts for well-known car brands can fall in price by 60-80%, car seats can fall in price by 50%. For example, a steering rack on a Renault Duster from an official dealer cost 2,625 rubles before the ruble collapse, and from an independent dealer it cost 949 rubles. The volume of the auto parts market in Russia is approximately $21 billion.

Parallel imports can be legalized not only in Russia, but also among all member countries of the Eurasian Union, the Eurasian Economic Commission (EEC) believes. At the same time, it is already in effect in Kazakhstan and Armenia international principle exhaustion of rights, implying legalized parallel imports. “The issue of allowing parallel imports has been under consideration for quite a long time, and now EAEU countries and the Commission are inclined towards such a model that parallel imports can be allowed for separate groups goods,” explained Gazeta. Ru" Andrey Slepnev, Minister of Trade of the EEC.

According to Kashevarov, parallel imports can “be carried out from Germany, Austria, Switzerland, as well as from the USA, Canada and Japan.”

But the legalization of “gray” imports only from certain countries can be regarded as a violation fundamental principles Russia’s accession to the WTO, clarifies Maria Borzova, head of the department law firm Vegaslex.

“Providing preferences to individual countries (for example, Germany and the USA) will give the right to other WTO member countries (for example, India and China, which have developed pharmaceutical production) to file a complaint with the WTO. At the same time, the WTO dispute settlement body has the right to cancel national regulatory measures if they are recognized as discriminatory,” says Borzova.

also in international law laid down fundamental right states to take discriminatory measures in response, Borzova adds.

Market participants are confident that legalized parallel imports will not have an effect. Drug prices will not go down. Artur Belenko, owner and Commercial Director The Mitsar pharmacy chain claims that most importers have been working directly with copyright holders for a long time.

“This is only in Russia in Soviet times Alenka chocolate was produced in ten factories. WITH different quality. In Germany, for example, this is not the case. A specific drug, if it is not a generic, is produced by one manufacturer. Only from him and without any “gray” schemes can you buy this medicine,” says Belenko.

Theoretically, you can buy the same medicine cheaper somewhere in India, but the packaging and packaging of this medicine will be made in accordance with the requirements of the local market. It will not be possible to simply transport this medicine from India to Russia. Customs won't let you through.

You shouldn’t expect a significant reduction in prices in the auto parts market as a result of the legalization of “gray” schemes, says Alexey Pevkhonen, director of NP ADAK (unites distributors of automotive components). In the secondary market, there has long been a de facto parallel import of spare parts. But in the segment warranty service car changes are possible. “We count on the government to help ensure that car owners have the legal ability to have their car serviced during the warranty period on the independent market. The car owner should not lose the car manufacturer's warranty if his car is serviced at an independent station using spare parts supplied from the independent market,” says Pövhönen.

If pilot project with medicines and spare parts will be successfully sold, the next group of goods that can be imported to Russia under a parallel scheme may be sporting goods, perfumes, cosmetics, consumer electronics. By 2020, parallel imports and the international principle of exhaustion of rights to goods should be introduced for all types of goods, according to the Eurasian Economic Commission.

The legality of parallel imports was proven in court: the Japanese manufacturer of car parts was unable to challenge the FAS warning. The decision of the ASGM was published in the file of arbitration cases. This is not the first year that the Service has been fighting for the introduction of such a norm in trade.

By current legislation Russian Federation, import of branded goods can only be carried out by the owner of the brand or a supplier authorized by him. Otherwise, the import of such products will be considered a violation of trademark rights.

Back in 2015, the Supreme Court expressed its position on parallel imports: the ban on the import of water without the consent of the copyright holder was declared illegal, leaving the decisions of previous instances unchanged (see). But in 2016, the Federal Antimonopoly Service announced that the import of parallel imported goods into Russia would be allowed (see). The head of the FAS, Igor Artemyev, commented that it is proposed to “liberalize the system of parallel imports for medicines, auto parts, and children's goods.”

In December 2017, the Constitutional Court considered the complaint of PAG LLC regarding the purchase of Sony brand paper for ultrasound machines. Then the company also faced the problem of parallel imports, having received a claim for the protection of exclusive rights to a trademark from a Japanese organization. " Legal fact crossing the border and importing into the territory of Russia cannot make the goods counterfeit and lead to the termination of the right to it. There is no reason to equate a product that was once produced by the copyright holder with a counterfeit,” noted the presidential representative in the Constitutional Court, Mikhail Krotov (see). Solution constitutional Court I did not accept the material at the time of publication.

In the summer of 2017, FAS continued its work to legalize the import of branded goods without the permission of copyright holders separate categories goods and issued warnings to Daimler AG, Renault, KYB Corporation and YD-Diagnostics. Unreasonable restrictions on the import of goods under their brands into the country for entrepreneurs who are not official dealers copyright holders were found to be a violation of antitrust laws.

KYB Corporation decided to challenge the FAS warning in court (case A40-159212/2017). ASGM accepted the position of the FAS. “The importation of such goods into the territory of the Russian Federation does not lead to any confusion between the original goods of the copyright holder and does not contain objective signs threats public interests, because the we're talking about about the product of the same manufacturer,” the court found. Actions to restrict the import of AGSM considered them to be contrary to the “principles of integrity, reasonableness and justice.”

Let's start with the main thing - parallel import of goods is prohibited in Russia. However, the possibility of its legalization is being actively discussed at all levels. The issues that must accompany allowing parallel imports are not simple, so legislators hesitate, weighing the pros and cons. How will parallel imports affect the state of domestic business? Is the state ready to create working mechanisms for implementing this idea and guarantee fair conditions? But markets are expanding, goods continue to move around the world, and consumer prices growing at cosmic speed. Will a balance of interests be found? We invite you to assess the current situation.

What is parallel import

Domestic legislation does not directly provide for a definition of this term. However, basic guidelines for understanding the problem of parallel import of goods can be found in the rules of law intellectual property(Civil Code of the Russian Federation, part 4). Objects intellectual property many, all of them are used in business one way or another. But when we talk about a product, first of all, we mean its individualization through a trademark.

The manufacturer labels his product with a trademark and sells it in his market, and then, as it develops, in other markets too. Knowing about good quality product and not a high price in the country of its manufacturer, another entrepreneur buys original product(from the manufacturer or other seller) and takes it to his country to sell to the local consumer. However, at the border the buyer is unexpectedly accused of importing counterfeit goods. And so customs detains the goods and draws up a protocol on administrative offense. The situation looks strange, because the product is original, it was produced legally, labeled by the manufacturer itself and purchased in a legal transaction. However, this happens regularly in Russia because the imported goods are prohibited parallel imports.

Why did a legally purchased product acquire the status of counterfeit? Because it was imported into the Russian Federation without the permission of the trademark owner. In other words, the importer decided to sell the goods in his country in parallel with sales of the manufacturer himself or his official representative in the same country. This is the answer to the question of what parallel import is. Thus, the issues of parallel import are in the area customs control and the fight against counterfeiting. You need to look into the details to understand whether this situation is fair.

A legally purchased product acquires the status of counterfeit if it was imported into the Russian Federation without the permission of the trademark owner.

What is counterfeit

It is generally accepted that counterfeit is fake goods, non-original, completely different from what was released by the manufacturer, but under his trademark. In Russia there is a rule according to which the production, distribution, import, transportation, storage material media, in which a means of individualization is expressed, if this leads to a violation of the exclusive right to such a means, are illegal, and the goods are counterfeit, subject to withdrawal from circulation and destruction (Clause 4 of Article 1252, Article 1515 of the Civil Code of the Russian Federation).

Thus, the key to recognizing a product as counterfeit is the violation of exclusive rights to a trademark. If a trademark is located on the label or packaging of a product illegally, as assessed by customs based on the documents for the product and information about the trademark, then things are bad. The customs authority will be on the side of the copyright holder, draw up a protocol and go to court. At the same time, customs looks at the situation formally; it can identify other only similar trademarks, claiming violation of exclusive rights.

The courts accept different solutions, because the concept of “counterfeit” in such cases acquires suspicious flexibility. If parallel imports occur, the courts are inclined to believe that such use of the trademark violates the exclusive right of the copyright holder and calls the original product counterfeit. If we are not talking about parallel imports, it is possible that the court will not recognize the original product that came to the Russian Federation as a way of using someone else’s trademark and will not call it counterfeit. Or there may be a completely different decision based on certain circumstances. Below we provide examples of court decisions.

So the main question is possible violation exclusive rights to a trademark. What is usually understood by such a violation? In general, everything that is not agreed upon with the copyright holder within the framework of the law. Here we need to delve a little deeper into legal nature trademark.

Purpose of the trademark

When promoting a product on the market, entrepreneurs often use the word “brand” or “trade mark” ( trademark), which is understood in different ways. This can be only a trademark (logo, designation) or a whole complex of objects - brand name the manufacturer, his business style, management methods, logistics technologies, form of product packaging and much more. But for us, in the context under consideration, only the trademark is important, as it is called in Russian law, it is he who most often becomes the object litigation about parallel imports.

Entrepreneurs know that a trademark has two main functions:

1. Personalizes the product.
2. Is intangible asset a certain cost.

Having received a certificate for a trademark in Russia, it is impossible to automatically acquire legal protection for this trademark in the EU or other countries, and vice versa.

Legal protection of a trademark

The holders of the exclusive right to a trademark may be commercial organization or individual entrepreneur(Article 1477 of the Civil Code of the Russian Federation). The logo of a non-profit organization is not a trademark and is protected in a different manner (read also, how to use non-profit organizations to optimize the costs of commercial companies ). Normal individual also cannot have an exclusive right to a trademark without the status of an individual entrepreneur.

To obtain an exclusive right to a trademark in Russia, the copyright holder must contact Rospatent. You will have to wait about a year for the result. The long-awaited trademark certificate gives the copyright holder the opportunity to defend his right on the territory of the Russian Federation according to Russian laws(in fact, he can defend himself earlier, but that's another story). If you need to obtain legal protection of a trademark in other countries, you will have to apply there with a corresponding request (national application).

Of course there is international system registration of trademarks. However, one should not be under the misconception that international order will provide the trademark protection throughout the world. This is wrong. The international application will also have to specify the country (one or more) in which protection is sought. Eventually international application for the protection of the exclusive right to a trademark will still be sent to the national patent office the country chosen by the applicant.

All of the above means that the legal protection of a trademark has its limits - state territory And national legislation. In other words, having received a certificate in Russia, it is impossible to automatically acquire legal protection for this trademark in the EU or other countries, and vice versa. And this is important for the problem of parallel imports.

Customs register of intellectual property objects

There are different mechanisms legal protection exclusive rights to the results intellectual activity. First of all, it is fair and independent court. Also in each country there are created government bodies, whose work is directly or indirectly aimed at protecting intellectual property. For example, in our country, the Federal Customs Service of Russia and the Federal Antimonopoly Service of Russia have such powers. The Federal Antimonopoly Service monitors issues unfair competition related to the use of the results of intellectual activity. Customs authorities monitor the movement of imported goods across the border of the Russian Federation, identifying counterfeit products.

For greater efficiency of legal protection of exclusive rights in international trade are being created customs registers objects of intellectual property (in the Russian Federation this is TROIS) and special customs posts. The copyright holder can write to customs Department corresponding statement, and in case positive decision, his trademark will become an object special attention customs. At its core, the Register is an additional barrier to imported counterfeit goods, including parallel imports. Through TRIIS, the copyright holder can control the import into the territory of the Russian Federation of goods marked with its trademark.

When submitting an application to the customs authority, the copyright holder must prove that he has an exclusive right to the trademark. Consequently, the procedure for obtaining a trademark certificate must have already been completed, and the exclusive right of the copyright holder must be formally confirmed by a certificate.

Import and sale in Russia of original goods marked with a trademark is the use of exclusive rights to this trademark.

Exclusive right to a trademark

Please note that the use of the exclusive right to a trademark as a means of individualization means not only its placement on a product (which is produced, sold, stored, imported), but also demonstration of the product at exhibitions, publication of its photographs on the Internet, use trademark in a domain name and much more. The list is not exhaustive (Article 1484 of the Civil Code of the Russian Federation).

Thus, the import and sale in Russia of original goods marked with a trademark is the use of exclusive rights to this trademark. In fact, this may mean that any person who owns the purchased product for any purpose (further resale, storage, import, etc.) uses the exclusive right to the trademark. But we know that the buyer, when purchasing a product, does not enter into license agreement to a trademark, that is, does not receive the consent of the copyright holder. Does this mean that he always violates an exclusive right? It depends on situation.

Exhaustion of rights

By general rule, from the moment of “introduction of goods into civil circulation”, the exclusive right to sell goods marked with a trademark is considered exhausted. You can put a product into circulation in a certain territory by importing it, selling it, displaying it at an exhibition, etc. In other words, the copyright holder loses the right to obstruct other sellers in the resale of the same product in the same territory. Resale is a legal process; we haven’t been living in the USSR for a long time. It would seem that everything is clear and simple. However, in each country the law provides for its own mechanism for the exhaustion of rights: international, national or regional.

International- this is the legal introduction of a product into circulation on the territory of any country, after which the right is considered exhausted throughout the world. This principle is accepted, for example, in China.

National– introduction of goods into circulation on the territory of a particular state, after which the right will be exhausted precisely in this territory. This principle is provided for by the law of the Russian Federation.

Regional– something between international and national, it is used when the territory of one country is expanded to the boundaries of the union of several countries, for example, European Union(EU). Russia by international agreements also accepted this principle while in the Eurasian economic union(EAEU), which also includes Kazakhstan, Belarus, Kyrgyzstan and Armenia.

Thus, today it is impossible to legally import goods into the Russian Federation, sell them, advertise them, or post them on an Internet site without the permission of the copyright holder. What are the consequences of such an action? Let us dwell on two measures of liability: administrative and civil.

We indicated above that today the approaches of the courts in understanding “counterfeiting” are different. This may be due to the fact that the elements of an administrative offense differ from civil ones; it is also important whether parallel imports take place.

The main task of a business is to prepare for potential claims from customs and trial even before concluding a foreign trade contract, that is, carefully collect all the information about the product and its origin.

Administrative responsibility for parallel imports

Administrative liability for the illegal use of means of individualization of goods (works, services) is established by Article 14.10 of the Code of Administrative Offenses of the Russian Federation. The rule provides for confiscation and administrative penalty at the rate of:

1. For officials– from 10 thousand rubles. up to 3 times the cost of the goods (but not less than 50 thousand rubles);
2. For legal entities– from 50 thousand rubles. up to 5 times the cost of the goods (but not less than 100 thousand rubles).

This norm is aimed at attracting administrative responsibility for distribution counterfeit products on the territory of the Russian Federation. Courts different authorities do not have a consensus on such matters. An appeal overturns the decision of the first instance, and the cassation may find that the appeal was incorrect. Cassation instance in such cases is the Court of Justice intellectual rights(SIP), since the issue concerns the use of exclusive rights to trademarks. The outcome of a case in this category of disputes always depends on the circumstances and evidence presented by the parties. Here are some recent examples of court decisions.

Parallel import: judicial practice

Example 1. In case No. A35-5781/2016 (SIP resolution No. C01-626/2017 of August 16, 2017), the cassation court agreed with the refusal to bring the enterprise to administrative liability. In this case, the goods were not parallel imports, since the disputed trademark was registered only in Ukraine. At the same time, another person registered a similar trademark in the Russian Federation, but for a different product, which customs saw as a violation of the exclusive right of the domestic copyright holder. The court of first instance, satisfying the application of the customs authority, proceeded from the territorial nature of the exclusive right to a trademark and the lack of permission of the copyright holder on the territory of the Russian Federation. The appeal overturned the decision, pointing out that the disputed product did not contain illegal use someone else's trademark, since it was produced and labeled on the territory of Ukraine by the copyright holder himself, i.e. The original product is not counterfeit. The Cassation Court agreed and noted that a product produced and labeled by the copyright holder “cannot be considered to contain an illegal reproduction of a trademark.” This means that the import of such goods into the Russian Federation does not constitute an administrative offense, even if this trademark is identical to another trademark registered in the Russian Federation. The court also noted that “the assessment of the legality of applying a designation to an imported product is given based on the legislation of the country of origin of the product,” that is, Ukraine, and Russian copyright holder can file a claim in order civil proceedings, if deemed necessary.

Example 2. In case No. A78-12097/2016 (SIP resolution No. C01-514/2017 dated July 13, 2017), the court considered the situation of parallel imports and used the same arguments as in the previous example. However, the company was nevertheless brought to administrative responsibility. The court recognized that if the goods are original, then no offense is formed, but clarified that the company did not prove the fact of the originality of the goods imported into the Russian Federation. Therefore, the product is still counterfeit. In other words, in this case the court placed the burden of proving the circumstances of the case not on the customs authority, but on the enterprise. Despite the fact that Part 5 of Art. 205 of the Arbitration Procedure Code of the Russian Federation directly provides: “in cases of bringing to administrative responsibility, the obligation to prove the circumstances that served as the basis for drawing up a protocol on an administrative offense cannot be assigned to the person brought to administrative responsibility.” This looks strange, but the SIP confirmed the legality of bringing the enterprise to administrative responsibility, because the enterprise did not refute the customs arguments and did not prove its innocence.

From the above judicial practice on parallel import in cases of bringing to administrative liability under Art. 14.10 of the Code of Administrative Offenses of the Russian Federation, the following conclusions can be drawn:

1. An original product is not counterfeit if its originality can be proven, and vice versa.
2. The burden of proving the originality of the goods may be placed on the entrepreneur.

Thus, the main task business - prepare for potential customs claims and litigation even before concluding a foreign trade contract, that is, carefully collect all the information about the product and its origin.

Civil liability for parallel imports

In the category of cases involving claims by copyright holders, courts of all instances are virtually unanimous in the opinion that the import of an original product into the territory of the Russian Federation without the permission of the copyright holder is a violation of its exclusive rights.

Arbitrage practice

Example 3. Considering the case regarding the trademark “VITTEL” Supreme Court The Russian Federation (definition of the Supreme Court of the Russian Federation dated October 27, 2015 No. 305-ES15-8790) declared it illegal to import goods into the territory of the Russian Federation without the permission of the copyright holder. The product was called counterfeit and subject to withdrawal from circulation and destruction. The question of the originality of the goods was not assessed by the courts, because this fact was not disputed by the parties.

Example 4. Considering the case regarding the trademark “Krusovice”, the Supreme Court of the Russian Federation (decision of the Supreme Court of the Russian Federation dated 02.08.2017 No. 305-ES17-9855) supported the conclusions lower courts that despite the defendant’s legal acquisition of goods on the territory of another state, he did not have the right to import and sell goods marked with a trademark in Russia without the permission of the copyright holder. At the same time, the court indicated that the defendant purchased and paid for the goods, and not the right to use the trademarks placed on them, which confirms the fact of violation of the plaintiff’s exclusive rights.

Example 5. In the case regarding the use of the VOLVO trademark, the courts determined that the defendant was guilty of importing original cars into the Russian Federation without the permission of the copyright holder to use the trademark in Russia. The court indicated that importation into the territory of the Russian Federation and registration customs declaration for a product is an independent violation of exclusive rights to a trademark (resolution of the Fourteenth AAC dated March 1, 2017 in case No. A52-3237/2016).

From the given examples of claims from copyright holders, the following conclusions can be drawn:

1. Importing goods into the territory of the Russian Federation without the permission of the copyright holder is a violation of its exclusive rights.
2. Illegally imported original goods are considered counterfeit.
3. The purchase and sale of goods is not assessed by the courts.

As can be seen from the examples given, arbitrage practice on parallel imports is ambiguous. The frequent argument of indignant defendant-violators about the dishonesty of the behavior of plaintiffs-right holders, who, having sold a product to the defendant and received money for it, then demand in court to withdraw it from circulation and destroy it, causing significant damage to the defendant, is not accepted by the courts.

The lack of parallel imports in Russia creates certain difficulties for small sellers, for example, online stores and other “non-giants”. They don't have enough resources to regular monitoring for compliance with formalities in the field of intellectual property.

conclusions

As a result of this whole story, the question arises: are copyright holders ready to give their consent to the import of goods into Russia to any parallel importer? Obviously they are not ready. It is not profitable for them to lose market share in the Russian Federation by dividing it with the importer. This is especially not beneficial in the case when this product is produced on the territory of the Russian Federation, and the consumer is often disappointed in its quality, preferring imports, which may still be cheaper. Therefore, the consumer indirectly suffers in the absence of parallel imports in the country.

Procedural aspects of obtaining the consent of the copyright holder also raise questions. Uniform form there is no consent, and the right to use the trademark must be registered with Rospatent. In practice, they are drawn up different types contracts, during the evaluation of which disputes arise about the qualification of transactions, tax and other issues. We also note that today not all trademarks that mark goods entering the Russian market are registered in the Russian Federation. Thus, it will not be possible to quickly deal with such a matter. To protect your violated right, you will have to collect and analyze a lot of very different information.

The problems we have raised also concern the exhaustion patent rights. For example, the United States just recently adopted the principle of international exhaustion of rights for patented pharmaceutical products. In Russia they are also considering legislative initiatives, aimed at allowing parallel imports of goods using patented inventions.

We must agree that the lack of parallel imports in Russia creates certain difficulties for small sellers, for example, online stores and other “non-giants”. They will not have the resources to regularly monitor compliance with intellectual property formalities. The FAS Russia, advocating the legalization of parallel imports in the country, believes that its ban creates a monopoly dealership. Large companies, on the contrary, support the idea national exhaustion right, knowing that parallel imports will hurt their income. Thus, while legislators decide which way Russia will go In the matter of parallel imports, there is no need to rush into concluding a foreign trade contract. First, you should analyze the situation on the Russian market, collect information about the product and come to an agreement with the copyright holder.

The international principle of exhaustion of rights may lead to an increase in counterfeit goods

On July 13, the Eurasian Economic Commission will consider the issue of partially allowing so-called parallel imports. Russian authorities support its introduction, but businesses warn about negative consequences

On Thursday, July 13, at a meeting of the Eurasian Economic Commission (EEC), the issue of partially allowing so-called parallel imports will be discussed, a source close to the commission told RBC. Russian side supports its introduction, follows from the minutes of the interdepartmental meeting of Russian government agencies on July 5 (available to RBC).

Representative of the Ministry of Economic Development Elena Lashkina confirmed to RBC information about the upcoming EEC meeting.

What is parallel import

Now in Russia and the Eurasian Economic Union (EAEU, includes Russia, Kazakhstan, Belarus, Kyrgyzstan, Armenia) there is a regional principle of exhaustion of rights to a trademark, that is, only its copyright holder can put a particular product into circulation. The international principle of exhaustion of rights (or parallel import) is that the import of goods under a registered trademark is possible into the country by any market participants, and not just those who have received permission from the copyright holder.

According to the minutes of the meeting of the EEC board, which took place at the end of April (available from RBC), it is proposed to provide for the possibility of temporarily changing the principle of exhaustion of trademark rights in the EAEU from regional to international. This can extend to both individual species goods that are not available on the union market are available in insufficient quantities or at inflated prices, and “in other cases based on the socio-economic interests of the Member States.” A fundamental decision on this possibility was made at the level of the Eurasian Intergovernmental Council (includes the heads of government of the member countries of the union) in 2016, recalls Lashkina.

The decision on such a change will be made by the Eurasian Intergovernmental Council, it is proposed in the draft EEC decision prepared by Russian side(available to RBC​). At the same time, according to the document, the copyright holder will be able to initiate a procedure for canceling the application of the international principle of exhaustion of rights.

Business did not support

The interdepartmental meeting on July 5 was attended by representatives of the Ministry of Economic Development, the Ministry of Industry and Trade, the Federal antimonopoly service(FAS), Rospatent, Ministry of Justice, Association European business(AEB) and Associations trading companies and manufacturers of electrical and household goods computer equipment(RATEK). Rospatent conceptually supports the prepared draft protocol, the head of the provision organization department conveyed to RBC through a representative public services Rospatent Dmitry Travnikov.

The position of the Ministry of Industry and Trade has not yet been formed, a representative of the ministry told RBC.

Business representatives are against the possibility of parallel imports. The AEB reported yesterday, July 11, that it was “concerned about the latest initiatives aimed at legalizing parallel imports.” “Everyone will suffer – investors, consumers and the state,” the association warns. The adoption of parallel imports can reduce the investment attractiveness of Russia and lead to an increase in counterfeit products, the organization is confident. I agree with the position of the association Executive Director"Rusbrand" Alexey Popovichev. According to him, the international principle of exhaustion of rights is more often chosen by countries where they do not rely on local development and localization foreign production. Parallel imports neutralize the efforts of business and the state to import substitution, Popovichev believes.

Photo: Grigory Sysoev / TASS

If parallel imports are allowed, the rules for the import of branded goods will change, explains RATEK representative Anton Guskov. For example, a television can be imported by any companies from any country without the consent of the vendor, not by importers authorized by the copyright holder. “The manufacturer will not be able to control imports, and therefore provide service maintenance buyers. However, this hits local production the hardest,” says Guskov. — A product produced in Russia will compete with a similar one from another country, but not suitable for Russian market" At the same time, he reminds that the legalization of parallel imports will not in any way affect the import of goods prohibited for import, including sanctions. Goods prohibited for import certain territories are tracked customs services these countries.

In addition, according to RBC’s interlocutor, the “unavailability” of entire categories of goods on the EAEU market or “inflated prices” and especially the “socio-economic interests of the member states”, which appear in the EEC protocol as reasons for allowing parallel imports, are evaluative concepts. And this creates the risk of arbitrary application of such criteria, he explains. Insufficient turnover of goods on the market may be associated with the general economic situation both in the union itself and in the exporting country. “It is impossible to develop clear and objective criteria for which goods should be included in the exceptions and who will determine these exceptions,” the AEB says.

According to forecasts given in a GfK study in 2013, allowing parallel imports in Russia could lead to a reduction in investment in the economy by 30-50%, depending on the industry, and a reduction in localized production in the first year would be about 20%. Customs and tax revenues by about 5-10%, the study says. At the same time, prices will decrease only by 5-10% at the wholesale level, but this most likely will not affect retail prices, GfK analysts believe.

Perspective on an old idea

In Russia national principle copyright has been in effect since 2002. But the idea of ​​legalizing parallel imports has been discussed for a long time. The FAS has been advocating for changes to the principle of exhaustion of rights since 2012. “Liberalization of parallel imports will promote competition and create preconditions for reducing prices for imported goods“, said the head of the FAS Igor Artemyev.

In 2013, First Deputy Prime Minister Igor Shuvalov said that parallel imports could be introduced in 2018-2020: this is “ reasonable time, during which the investment can be returned." However, already in 2015, the head of the Russian government, Dmitry Medvedev, parallel imported several categories of goods as an experiment. We were talking about spare parts for cars, medicines, medical products, cosmetics, children's products. The final list was not formed, the implementation of the idea was postponed.