New edition of Art. 180 of the Criminal Code of the Russian Federation
1. Illegal use of someone else’s trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods, if this act was committed repeatedly or caused major damage, -
shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by forced labor for a term of up to two years. up to two years, or imprisonment for a term of up to two years with a fine in the amount of up to eighty thousand rubles or in the amount of the 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 major damage, -
shall be 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 labor for a term of up to three hundred and sixty hours, or by corrective labor for a term 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, -
shall be punishable by a fine in the amount of two hundred thousand to four hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of eighteen months to three years, or by forced labor for a term of up to four years, or by imprisonment for the same term with a fine of up to one hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one year or without it.
4. Acts provided for in parts one or two of this article, committed by an organized group, -
shall be 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 by forced labor for a term of up to five years, or by imprisonment for a term of up to six years with a fine 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.
Commentary on Article 180 of the Criminal Code of the Russian Federation
1. Regulatory material: Law of the Russian Federation of September 23, 1992 N 3520-1 “On trademarks, service marks and appellations of origin of goods” (as amended on December 24, 2002) <1>; Rules for drawing up, submitting and considering an application for registration of a trademark and service mark, approved. By Order of Rospatent dated March 5, 2003 N 32 <2>; Rules for registration of agreements on the transfer of the exclusive right to an invention, utility model, industrial design, trademark, service mark, registered topology of an integrated circuit and the right to use them, full or partial transfer of the exclusive right to a program for electronic computers and a database, approved. By Order of Rospatent dated April 29, 2003 N 64 (as amended on December 11, 2003) <3> and others ——————————— <1> Gazette of the Russian Federation. 1992. N 42. Art. 2322; NW RF. 2001. N 1 (part 1). Art. 2, N 53 (part 1). Art. 5030; 2002. N 50. Art. 4927, N 52 (part 1). Art. 5132. The law will become invalid on January 1, 2008 due to the entry into force of the fourth part of the Civil Code (see Art. 1, 2 of the Federal Law of December 18, 2006 N 231-FZ “On the entry into force of part four of the Civil Code of the Russian Federation” (RG . N 289. 2006)). Note scientific ed.
<2> BNA. 2003. N 23.
<3> BNA. 2003. N 36; 2004. N 1.
2. In part 1 and part 2 comments. The article sets out two independent elements of the crime, similar to each other in terms of the objective and subjective sides and the subject and differing in the subject of the criminal offense.
3. The subject of the attack under Part 1 comment. articles are: a) someone else’s trademark; b) someone else's service mark; c) someone else’s name of the place of origin of the goods; d) designations similar to them for homogeneous goods.
4. A trademark and service mark are designations used to individualize goods, work performed or services provided to legal entities or individuals.
5. The owner of a trademark (service mark) has the exclusive right to use the trademark, as well as to prohibit its use by other persons.
6. Appellation of origin of goods (APO) is a designation that represents either a modern or historical name of a country, locality, locality or other geographical object or a derivative of such a name and has become known as a result of its use in relation to a product whose special properties solely or mainly determined by the natural conditions and (or) human factors characteristic of a given geographical object.
Examples of appellations of origin of goods include: “Khokhloma”, “Gzhel”, “Fedoskino”, “Tula gingerbread”, “Pavlovo Posad shawls”, “Dymkovo toy”, “Rostov enamel”, “Yakut bone carving”, “Tsimlyanskoye sparkling” "(for wine), "White Sea patterns" (for wood carving), etc.
7. Trademark, service mark, name of place of origin of goods as the subject of a crime under part 1 comment. the articles must be “foreign” for the perpetrator, i.e. the latter uses them illegally, they do not belong to him, the right to use these items was not legally transferred to the perpetrator.
8. Trademark, service mark and appellation of origin of goods as items part 1 comment. articles must be registered in our country. Trademarks of foreign countries are also subject to registration.
9. Designations similar to trademarks, service marks, appellations of origin for homogeneous goods are designations that are identical or similar to other people’s marks and names to the point of confusion with them; for example, Panasonix instead of Panasonic - for radio equipment; Akaiwa instead of Akai, Aiwa - for television equipment; Gillello instead of Gillette - for razor blades; Culgate instead of Colgate for toothpaste; Big instead of Bik for French ballpoint pens, etc.
10. The subject of part 2 comments. Article is a warning label regarding a trademark or appellation of origin of a product that is not registered in the Russian Federation. According to Art. 24 of the Basic Federal Law, the copyright holder may place a warning mark next to the trademark in the form of the Latin letter “R” or the Latin letter “R” in a circle (R) or the verbal designation “trademark” or “registered trademark”, indicating that the designation used is a trademark registered in the Russian Federation. In accordance with Art. 41 of the Law of the Russian Federation of September 23, 1992 N 3520-1, the holder of a certificate of the appellation of origin of goods may affix a warning marking next to the appellation of origin of the goods in the form of the verbal designation “registered appellation of origin of goods” or “registered appellation of origin”, indicating that the applied the designation is the name of the place of origin of the goods, registered in the Russian Federation.
In part 2 comments. Article refers to warning markings that indicate a trademark or appellation of origin of a product that is not registered in the Russian Federation.
11. The objective side of the elements of crime provided for in parts 1 and 2 of the comment. article, completely coincides and consists of the illegal use of objects of criminal assault, if the act was committed repeatedly or caused major damage.
12. The use of a trademark, service mark or their warning markings means their use on goods and (or) their packaging, in advertising, printed publications, on official letterheads, on signs, when displaying exhibits at exhibitions and fairs.
The use of the appellation of origin of a product or its warning marking is considered to be its use on the product, packaging, advertising, prospectuses, invoices, forms and other documentation related to the introduction of the product into economic circulation.
13. The use of infringement items is illegal in the following cases: a) if a trademark (service mark) is used by a legal entity or individual who has not registered the trademark and does not have a certificate for it, including a certificate for a well-known trademark or collective mark; if the trademark (service mark) was not legally transferred to it by its copyright holder in the order of an agreement on the assignment of a mark or a license agreement, or is used by legal entities and individuals - non-owners of the mark in the absence of an agreement on intermediary activity, giving them the right to use their trademark along with the trademark of the manufacturer of the goods or instead of the latter’s trademark (in these cases, the trademark is foreign to persons); b) if the appellation of origin of the goods is used by persons who have not registered the appellation of origin of the goods and do not have a certificate of this. In these cases, the appellation of origin of the goods is alien to persons, since in accordance with the Law, the holder of the certificate for the right to use the appellation of origin of the goods does not have the right to grant licenses to use the appellation of origin of the goods to other persons; the possibility of transferring the appellation of origin of the goods through a license agreement is not stipulated here ; c) if legal entities and individuals use designations as signs to designate their goods and services that are identical or confusingly similar to other people’s trademarks, service marks, and appellations of origin of goods (Part 1 of the commentary article); d) if the goods are affixed with a warning label regarding a trademark or appellation of origin of the goods that are not registered in the Russian Federation (Part 2 of the commentary article).
14. Conditions for involvement in the MA both under Part 1 and Part 2 of the comment. Articles are: a) repetition of the act specified in the dispositions of the units, or b) causing major damage as a result of the act. Thus, the elements of illegal use of a trademark can be both formal and material.
15. Repeated repetition of parts 1 and 2 of the commentary. The article assumes that the second fact of committing illegal use of a trademark, which did not entail causing major damage, is criminal. Moreover, each part has its own repetition: part 1 comment. article it means that the person previously committed an act provided for in this part of the article; repetition according to part 2 comments. Article consists of repeated illegal use of warning markings in relation to a trademark or appellation of origin of a product that is not registered in Russia.
16. Repeated illegal use of a trademark ends at the moment of the second fact of its use. One-time - at the time of causing major damage (according to the note to Article 169, its amount must exceed 250 thousand rubles).
17. The subjective side is characterized by an intentional form of guilt.
When using warning labels according to part 2 comments. article, the offender must know that the trademark or appellation of origin has not been registered in the Russian Federation.
18. The subjects of a criminal attack are individuals, individual entrepreneurs, managers and ordinary employees of legal entities, regardless of the form of ownership, legal form and purpose of activity, citizenship and other characteristics.
19. Qualifying characteristics are provided in part 3 of the commentary. articles. The punishment is aggravated by the commission of acts provided for in Part 1 or 2 of the comment. article, by a group of persons by prior conspiracy or by an organized group.
20. The acts provided for in parts 1 and 2 of the comment. Articles belong to the category of crimes of minor gravity, and Part 3 - serious crimes.
Article 180. Consequences of invalidity of part of the transaction
Ruling of the Supreme Court of the Russian Federation dated 01/09/2017 N 306-ES16-18082 in case N A72-9086/2015 To recover the cost of equipment in the amount of 490,000 rubles. and 753,863 rubles. 26 kopecks the receivables were rejected due to the failure of the entrepreneur to prove the transfer of property for the remaining amount and his lack of receivables. The collection of remuneration in the amount of 652,443 rubles 86 kopecks was refused, since the condition of the contract establishing the obligation of the agent to sell the goods of the principal and pay the latter remuneration was declared void by the courts on the basis of Articles 168, 180 of the Civil Code of the Russian Federation as contrary to the provisions of the agency agreement and the supply agreement.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated February 10, 2017 N 305-ES15-4129 in case N A40-48196/2013
When reconsidering the case, the appellate court, taking into account the instructions of the cassation court on the need to clarify the circumstances of misleading consumers as a result of concluding controversial transactions, guided by the provisions of Articles 168, 180, 1233, 1488 of the Civil Code of the Russian Federation, Methodological recommendations for checking declared designations for identity and similarity, approved by order of Rospatent dated December 31, 2009 N 197, having established the presence of confusing similarity of the trademarks remaining in the plaintiff’s group of companies with all the disputed trademarks, with the exception of the “Window to Europe” trademark, came to the conclusion that the disputed transactions were invalid in the power of insignificance.
Ruling of the Supreme Court of the Russian Federation dated February 10, 2017 N 308-ES16-20641 in case N A32-9844/2015
Changing in part the decision of the court of first instance, the appellate court was guided by the provisions of articles 168, 180, paragraph 4 of article 421 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the provisions of the Federal Law of July 18, 2011 N 223-FZ “On the procurement of goods, works, services by certain types of legal entities" (hereinafter referred to as Federal Law of July 18, 2011 N 223-FZ).
Ruling of the Supreme Court of the Russian Federation dated February 27, 2017 N 308-ES16-20959 in case N A53-35300/2012
Satisfying the stated claims, the courts of appeal and cassation instances, having assessed the evidence presented in the case and being guided by the provisions of Articles 166, 167, 168, 180, 246 of the Civil Code of the Russian Federation, the explanations contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N " On some issues in the practice of considering disputes regarding the rights of premises owners to the common property of a building", Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 04/29/2010 N /22 "On some issues arising in judicial practice when resolving disputes related to protection of property rights and other real rights”, Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”, established that, taking into account the parties to the disputed purchase and sale agreement, the agreement on reconstruction of the alienated property, including common property; the subsequent conclusion of the contract itself was possible only if it contained conditions on the sale of the common property of the owners of the premises of the building. However, the consent of the co-owners was not obtained.
Ruling of the Supreme Court of the Russian Federation dated February 28, 2017 N 701-PEK16 in case N A73-2931/2015
At the same time, the court of first instance proceeded from the fact that part 2 of article 74 of the Forest Code of the Russian Federation contains a special rule, according to which the possibility of changing the terms of a lease agreement concluded at an auction is limited to the case provided for directly by the Forest Code of the Russian Federation (part 7 of article 53.7), therefore, the application of civil law rules regarding the conditions and grounds for changing such an agreement at the request of one of the parties or on the basis of agreement of the parties to the agreement is excluded. Considering that the disputed agreement was concluded based on the results of an auction, the amount of rent was formed at auction and is not regulated by an authorized public body, the court considered that the indexation coefficient established by the resolution of the Government of the Russian Federation cannot be applied, and the lease agreement in terms of clause 7 is invalid (void) transaction by virtue of Articles 166, 167, 168, 180 of the Civil Code of the Russian Federation, since it does not comply with the provisions of Article 424 of the Civil Code of the Russian Federation and Article 73 of the Forestry Code of the Russian Federation.
Ruling of the Supreme Court of the Russian Federation dated March 17, 2017 N 301-ES17-312 in case N A79-3665/2016
Having examined and assessed in the manner prescribed by Article 71 of the Arbitration Procedural Code of the Russian Federation, the evidence presented by the parties, guided by Article 69 of the Arbitration Procedural Code of the Russian Federation, Articles 166, 168, 169, 180, 506 of the Civil Code of the Russian Federation, the courts, refusing to satisfy the claims, We proceeded from the fact that invoices are not independent transactions and do not contain terms of the supply agreement that may be invalidated.
Ruling of the Supreme Court of the Russian Federation dated March 23, 2017 N 306-ES17-2071 in case N A12-54428/2015
In satisfying the counterclaim, the courts were guided by Articles 180 and 575 of the Civil Code of the Russian Federation and, having examined and assessed the evidence presented in the case in accordance with the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that when concluding transactions for pledging real estate from pledgors, who pledged real estate to the plaintiff without any benefit under the obligation of an outsider, there was no economic feasibility.
Ruling of the Supreme Court of the Russian Federation dated March 23, 2017 N 307-ES17-1324 in case N A56-86858/2015
Article 180 of the Civil Code of the Russian Federation provides that the invalidity of part of a transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without the inclusion of its invalid part. Considering that the will of the parties to the agreement dated December 21, 2014 was aimed at the acquisition by the plaintiffs (buyers) from the defendant (seller) of the entire complex of property and non-property rights (100% of the shares of the authorized capital of the company with property belonging to the company), however, the court established the circumstances in which the transaction is void, the court had no grounds for declaring it invalid only in part.
Ruling of the Supreme Court of the Russian Federation dated April 3, 2017 N 306-ES17-2228 in case N A65-9506/2016
In adopting the part of the judicial acts contested by the applicant, the courts were guided by the provisions of Articles 168, 180, 454, 459, 475, 476, 557 of the Civil Code of the Russian Federation and proceeded from the fact that clause 4.3 of the agreement was declared invalid by the arbitration court, and the failure of the entrepreneur to fulfill the terms of clause 2.1. 5. does not indicate the presence of defects in the purchased property.
Ruling of the Supreme Court of the Russian Federation dated April 20, 2017 N 306-ES17-737 in case N A55-4072/2016
By virtue of Articles 168 and 180 of the Civil Code, the courts declared the disputed agreement regarding the price of the land plot to be an invalid transaction. As a result of determining the price of a land plot exceeding the normatively established amount, on the side of the seller, in their opinion, unjust enrichment was created, which serves as the basis for its recovery from the municipality.
Ruling of the Supreme Court of the Russian Federation dated May 4, 2017 N 309-ES17-4518 in case N A76-9454/2016
When accepting the appealed judicial acts, the courts, guided by the provisions of Articles 166, 167, 168, 180, 395, 421, 779, 819, 1102 of the Civil Code of the Russian Federation, Part 1 of Article 29 of the Federal Law of December 2, 1990 N 395-1 “On Banks and banking activities", the explanations set out in paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147 "Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement", having examined and assessed in accordance with the article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented in the case recognized the demands for the recovery of 19,720 rubles as justified. unjust enrichment, amounting to a commission for granting a loan under a loan agreement and interest for the use of other people's funds in the amount of 4,737 rubles. 75 kop.
Article 180. Entry into force of a decision or court order
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated April 10, 2017 in case No. 307-ES16-18457, A66-3120/2016 Meanwhile, in accordance with Part 3 of Article 180 of the Arbitration Procedure Code of the Russian Federation, decisions of the arbitration court in cases considered in summary proceedings, and in cases provided for by the said Code or other federal law, and in other cases, they come into force within the time limits and in the manner established by this Code or other federal law.
Ruling of the Supreme Court of the Russian Federation dated May 12, 2017 N 309-ES17-4081 in case N A07-27184/2015
Since this decision of the arbitration court in case No. A07-18618/2013 was made in December 2013, the court came to the conclusion that, on the basis of Part 1 of Article 180 of the Arbitration Procedure Code of the Russian Federation, it came into force on January 14, 2014, and therefore indicated that the court of first instance had no legal basis for applying Article 24.20 of the Federal Law of July 29, 1998 N 135-FZ (as amended by the Federal Law of July 21, 2014 N 225-FZ) and extending the validity of the new value of the cadastral value of the land plot for the period from February 27. 2013.
Ruling of the Supreme Court of the Russian Federation dated May 23, 2017 N 309-ES17-6093 in case N A60-4709/2016
Refusing to satisfy the demands, the courts, guided by Articles 112, 180, 182, 187, 188, 318, 319 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that there were no grounds for issuing a writ of execution to determine the collection of legal costs before the expiration of the period for appealing this judicial act.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated July 13, 2017 in case No. 310-ES16-6559, A35-9424/2009
Thus, in the case under consideration, the last judicial act, the adoption of which ended the consideration of the case on the merits, should be considered the decision of the Arbitration Court of the Kursk Region dated May 29, 2014, which entered into legal force in accordance with Part 1 of Article 180 of the Arbitration Procedure Code of the Russian Federation on June 30, 2014 (including weekends days).
Ruling of the Supreme Court of the Russian Federation dated August 25, 2017 N 307-ES17-10980 in case N A56-68178/2015
Having assessed the evidence presented in the case materials, guided by the provisions of Articles 117, 180, 273, 276, 281 of the Arbitration Procedural Code of the Russian Federation, as well as the legal position set out in the Resolution of the Constitutional Court of the Russian Federation dated March 17, 2010 N 6-P, having established the circumstances of the person’s omission , not involved in the case, the period for appealing judicial acts, his proper knowledge of their adoption by the courts of first and appellate instances, in the absence of evidence of good reasons that objectively prevented the timely completion of the procedural action by the party, the district court refused to satisfy the applicant’s request for reinstatement missed procedural deadline for filing a cassation appeal.
Ruling of the Supreme Court of the Russian Federation dated September 6, 2017 N 306-ES17-11599 in case N A49-14323/2016
The courts, guided by the provisions of Articles 117, 176, 180, 259 of the Arbitration Procedural Code of the Russian Federation, stated the absence of objective and independent of the applicant reasons for reinstating the procedural deadline missed by the institution. The conclusions made by the courts correspond to the norms of law; there are no grounds for re-evaluating these conclusions.
Ruling of the Supreme Court of the Russian Federation dated September 11, 2017 N 309-KG17-12119 in case N A47-13361/2015
At the same time, obstacles to the implementation of actions for indisputable debt collection occurred only during the period of validity of interim measures taken by the court ruling dated May 13, 2014 in case No. A47-4626/2014. At the same time, these interim measures were canceled by a court decision dated 10/07/2014 and ceased to have effect from the moment the judicial act entered into legal force, namely from 12/16/2014 - the day the decision of the arbitration court of appeal was adopted (Article 180 of the Arbitration Procedural Code of the Russian Federation) , while decisions to collect N 4100 and N 4101 were made by the inspectorate on June 10, 2015 (almost six months later).
Ruling of the Supreme Court of the Russian Federation dated September 26, 2017 N 301-ES17-14704 in case N A43-3537/2015
In this case, the writ of execution in accordance with Articles 180, 182 of the Arbitration Procedure Code of the Russian Federation is subject to issue after the court decision enters into legal force from the date of adoption of the decision of the arbitration court of appeal. If the decision of the district court is unclear, the applicant has the right to apply for clarification in accordance with Article 179 of the Arbitration Procedure Code of the Russian Federation.
Ruling of the Supreme Court of the Russian Federation dated September 29, 2017 N 305-KG17-13578 in case N A41-74384/2016
The courts have clarified that if an appeal against a court decision is accepted for court proceedings beyond the time limit established by Part 1 of Article 180 of the Arbitration Procedure Code of the Russian Federation, the enforcement proceedings initiated in connection with the appealed court decision are subject to suspension. There are no grounds for canceling the bailiff's decision to initiate enforcement proceedings in this case.
Ruling of the Supreme Court of the Russian Federation dated October 30, 2017 N 309-ES17-15730 in case N A07-24784/2016
The courts of the first and appellate instances, having examined and assessed, according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented in the case materials, including the lease agreement, guided by Articles 309, 433, 445, 446, 606, 607, 608, 614, 651, 654 of the Civil Code of the Russian Federation Federation, Article 180 of the Arbitration Procedure Code of the Russian Federation, explanations given in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73 “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on the lease agreement”, taking into account the circumstances established by the arbitration courts when considering cases No. A07-22613/2014 and A07-11001/2015, came to the conclusion that the claim was justified, based on the following: by the decision of the Arbitration Court of the Republic of Bashkortostan dated 07/03/2015 in case No. A07-22613/2014, the disagreements that arose between the parties when concluding the agreement were resolved purchase and sale of real estate leased by an entrepreneur; this decision came into force on the date of adoption of the decision of the Arbitration Court of the Ural District dated December 15, 2015, by which the district court overturned the decision of the appeal court that overturned the said decision; in this situation, until December 15, 2015, that is, for the period preceding the conclusion of the purchase and sale agreement, the entrepreneur was obliged to pay rent; in connection with the violation of the deadline for payment of rent, the defendant is subject to a penalty accrued on the basis of clause 4.1.1 of the lease agreement.
Ruling of the Supreme Court of the Russian Federation dated March 6, 2020 N 307-ES20-825 in case N A56-113200/2018
Based on the results of studying the judicial acts adopted in the case and the arguments contained in the cassation appeal, it was established that the grounds provided for in Article 291.6 of the Arbitration Procedural Code of the Russian Federation for transferring the complaint for consideration in a court session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation are absent. The courts were guided by Articles 61.2, 213.8, 213.24, 213.32 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”, Articles 117, 180, 259, 264 of the Arbitration Procedural Code of the Russian Federation and proceeded from the legality of declaring the debtor bankrupt, the absence grounds for reinstating the missed procedural deadline for filing an appeal.
