1. Illegal use of someone else’s trademark, service mark, name of place of origin of goods or similar designations for homogeneous goods, if this act was committed repeatedly or caused large-scale damage, is punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of wages wages or other income of the convicted person for a period of up to two years, or compulsory labor for a term of up to four hundred eighty hours, or correctional labor for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for a term of up to two years with a fine of in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months.
2. Illegal use of warning markings in relation to a trademark or appellation of origin of goods not registered in the Russian Federation, if this act was committed repeatedly or caused large-scale damage, is punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the wages or other income of the convicted person. for a period of up to one year, or by compulsory work for a period of up to three hundred and sixty hours, or by corrective labor for a period of up to one year.
3. Acts provided for in parts one or two of this article, committed by a group of persons by prior conspiracy or by an organized group, are punishable by a fine in the amount of five hundred thousand to one million rubles or in the amount of the wages or other income of the convicted person for a period of three to five years. , or forced labor for a term of up to five years, or imprisonment for a term of up to six years with a fine in the amount of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three years or without it.
Note. In this article, major damage is defined as damage the amount of which exceeds two hundred and fifty thousand rubles.
(Note additionally included from January 11, 2015 by Federal Law of December 31, 2014 N 530-FZ)
Article 180 of the Labor Code of the Russian Federation
Article 180 of the Labor Code of the Russian Federation provides that if an organization intends to cease to exist or lay off working specialists, it should first of all take care of compliance with certain guarantees for full-time employees.
In particular, before downsizing an employee (i.e., firing), the company must first offer him other available vacancies, even if they do not correspond to his profile.
Each of the laid-off employees must be notified no later than 2 months before this specialist is dismissed.
If there is a threat of mass layoffs in the company, by virtue of Art. 180 of the Labor Code of the Russian Federation, certain measures should be taken to reduce the negative consequences of such dismissal.
In addition, laid-off employees are entitled to certain compensation.
What if due to layoffs you were fired not 2, but, for example, 5 months after the warning?
In order to warn the company’s specialists about the impending reduction, Art. 180 of the Labor Code of the Russian Federation gives the employer 2 months. But this does not mean at all that after an employee has received a warning, he must be fired within 2 months. The Labor Code of the Russian Federation does not contain a corresponding imperative norm.
So a specialist who has not been laid off 2 months after receiving a warning cannot relax.
The company has the right to terminate the employment contract with him even after the end of the specified period. At the same time, the courts proceed from the legality of dismissal, which laid-off workers often unsuccessfully try to challenge (rulings of the Moscow City Court dated November 6, 2015 in case No. 33-40687/2015, dated February 12, 2014 in case No. 33-6931/2014, etc.). You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
The fight against counterfeiting as a type of business
The topic raised by the respected Ivan Nikolaevich in this publication is so interesting and multifaceted that I decided to continue it, but already in the public domain in the faint hope of at least a little understanding and warning of individual “merchants” of the domestic spill, who, in the pursuit of profit It seems that not only the ability to analyze, but also the instinct of self-preservation is turned off.
Increasingly, those who are brought to criminal liability under Art. are turning to us, lawyers, for help. 180 of the Criminal Code of the Russian Federation (Illegal use of means of individualization of goods (works, services).
Moreover, most often, criminal prosecution for this crime occurs in the presence of the qualifying feature specified in part four of this article, as committed by an organized group.
Based on the analysis of several criminal cases, I was able to simulate one of the most likely scenarios for criminal prosecution for these crimes.
If we delve a little deeper into the history of the issue, then the illegal use of other people’s trademarks, service marks, etc., did not begin yesterday - during the times of the USSR, the use of “Wrangler”, “Montana”, “Rifle”, and other well-known brands on jeans made in the underground workshops of “guild workers” of the Soviet period were put into production - however, “to places not so remote” they were sent not for violating copyright or related rights; There were other articles in the Criminal Code of the RSFSR - from the theft of socialist property, to private entrepreneurship and commercial intermediation, and issues of encroachment on others' copyrights, especially if they belonged to representatives of capitalist countries, were of no particular interest to anyone.
Nowadays, violations of copyright and related rights have already acquired a transnational character, while the main supplier of counterfeit products, traditionally, is China, where, it seems, everything is counterfeited, and entrepreneurs from there quickly find like-minded people here.
However, which of them, and how they find a business partner, is a separate topic.
But it turns out that identifying violators can also become a good business, the scheme of which is simple and unpretentious, and I was able to understand how it works after familiarizing myself with several criminal cases initiated under Part 4 of Art. 180 of the Criminal Code of the Russian Federation.
Each copyright holder of a well-known brand in the Russian Federation has its own representative - and each of them can represent several copyright holders or the copyright holder of several brands at once.
There is something common in such criminal cases - a very quick reaction of law enforcement officers to statements by representatives of brand rights holders, which is expressed in the fact that criminal cases based on such statements are initiated, practically without the traditional violation of the deadlines for making procedural decisions provided for in Art. 144 of the Code of Criminal Procedure of the Russian Federation, and what is significant is that these statements are preceded by a whole complex of operational measures, sometimes lasting up to a year.
Do you believe that the Russian police work like this, carefully and painstakingly, on every crime?
However, the question is rhetorical...
Practically, in all materials of criminal cases initiated on the basis of a crime under Part 4 of Art. 180 of the Criminal Code of the Russian Federation, there are materials about the “test purchase” of goods that can be recognized as counterfeit, at least two such “test purchases” are carried out, and after the first there are no consequences for the “merchant”.
Ask why?
Yes, everything is simple - to qualify actions that constitute a crime under Art. 180 of the Criminal Code of the Russian Federation, it is necessary that the illegal use of someone else’s trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods occurs repeatedly.
What if, according to law enforcement officers, the entrepreneur detained after the first “test purchase” decides not to tempt fate anymore and does something less reprehensible than selling counterfeit goods?
It is clear that drawing up a protocol on an administrative offense under Art. 14.10 of the Code of Administrative Offenses of the Russian Federation for a one-time illegal use of someone else’s trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods, or production for marketing purposes or sale of goods containing an illegal reproduction of someone else’s trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods, are much less interesting than the opportunity to “cut down a stick” for solving a serious crime.
And the fact that Article 5 of the Federal Law “On Operational-Investigative Activities” is directly prohibited from “inciting, inducing, inducing in direct or indirect form to commit illegal actions,” since this is called provocation, few people care - well, you never know what we are prohibited.
By the way, it is precisely this free interpretation by law enforcement officers of their powers when carrying out operational investigative activities that defenders should pay the closest attention to.
Now, it’s time to talk about how several entrepreneurs who decide to start this, to put it mildly, business not encouraged by law, turn into an organized group.
First of all, let's remember the signs of such a form of complicity as an organized group; this is a stable group of people who have united in advance to commit one or more crimes (Part 3 of Article 35 of the Criminal Code of the Russian Federation).
And here for a lawyer there is the widest field for activity, since there is a fairly clear line between a group of people united by prior conspiracy and an organized criminal group, since the latter is characterized by stability, the presence in its composition of an organizer (leader) and a pre-developed plan for a joint criminal activities, distribution of functions between group members in preparation for committing a crime and carrying out criminal intent (see, for example, Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29 “On judicial practice in cases of theft, robbery and robbery.”
How do law enforcement officers determine that a crime was committed by an organized criminal group?
Yes, it’s elementary - for example, a company registered in accordance with the established procedure, in addition to legal activities, in the order of “diversification”, and to “replenish working capital”, sinned a couple of times with the acquisition and sale of counterfeit products - here you have an “organized criminal group”.
There are other options, but their description is already the topic of a monograph for a candidate’s dissertation.
Since, as mentioned earlier, a complex of operational-search activities is carried out more than one day, and even more than one month, the results of the PTP (tapping of telephone conversations) are also used.
I’ll say right away - no one in particular, except for lawyers, at the stage of familiarization with the materials of the criminal case in accordance with Art. 217 of the Code of Criminal Procedure of the Russian Federation, will not analyze; The fact of deciphering these conversations is enough for the prosecution, and “tailoring” the qualifications obtained to the required qualifications for the prosecution is not a problem at all.
When does this “first bell” ring, foreshadowing future troubles for those who like to use other people’s brands without informing their copyright holders?
One of these “bells and whistles” is a request to obtain information from OEBiPK - in itself it does not pose any particular danger, of course, if you do not rush to prepare kilograms of documentation for this request, however, what to do if you receive such requests, I have repeatedly told in my previous publications - they are all available on Pravoruba, so I will not repeat them.
But from the contents of the request, when carefully studying it, the lawyer can learn a lot of interesting things, for example, about the presence of an established DOU (operational accounting file), which concentrates all the operational information, both on this entrepreneur and on his business partners, accordingly, determine how long has this entrepreneur been under surveillance?
The strangest thing an entrepreneur can do in this case, and does most often, is to somehow get rid of the “litigated” enterprise, register a new one, and continue to do the same thing that has already aroused interest in it from law enforcement officers.
It is probably very difficult for individual citizens to understand that law enforcement officers are only interested in an enterprise as a tool for committing unseemly acts, but their personalities are the true goal of curiosity with far-reaching conclusions and unhappy consequences.
So, the materials are collected, transferred to the investigator, who initiates a criminal case, and after a short period of time, exactly what all these complex and expensive measures were carried out for appears - a civil lawsuit filed by a representative of the copyright holder in the interests of his principal for a very impressive amount, with certificates attached -calculation of the amount of damage caused.
Further, as part of the criminal case initiated, a series of examinations are appointed, during which it is confirmed both the fact that the seized products are counterfeit and the amount of damage, which coincides to the last penny with the amount of the declared civil claim within the criminal case.
As a rule, in this category of cases, entrepreneurs are overwhelmed by the volume of evidence that the investigator shows them with a mournfully triumphant look, and even if this all happens in a temporary detention facility, where they are placed for 48 hours in accordance with Articles 91, 92 of the Code of Criminal Procedure The Russian Federation, and even the lawyer invited by the investigator (alas, there are still such among us), sympathetically suggests not to persist, but to cooperate with the investigation, they are ready to tell everything about everyone, thereby further aggravating their situation and turning the hypothetical fourth part of Art. 180 of the Criminal Code of the Russian Federation into a very real one.
As an incentive, the entrepreneur and his comrades, in the form of a preventive measure, receive only a written undertaking not to leave the place and proper behavior, and not house arrest.
Actually, this is where all the good things end for him and his fellow sufferers, since the term of the sentence may be quite real, as well as a writ of execution for the amount of damage caused, which will have to be compensated jointly by all participants in the “organized group.”
Here I am not making any recommendations - everyone chooses their own path, and, taking into account the materials of criminal cases for this category of crimes, this path is well-trodden for those already convicted - it’s probably more convenient for them than to listen to advice when troubles are just beginning have just appeared on the horizon and everything can still be fixed...
