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The Office of the Federal Antimonopoly Service of Russia (OFAS Russia) recognized the actions of LLC “Kolomenskiy Posad” to be an unfair competition act.

Sept. 6, 2018

The Commission of the OFAS Russia had considered the application of LLC “Kolomenskaya Pastila,” whose interests were represented by the lawyers of the company “Zuykov and Partners,” and recognized the actions of the defendant LLC “Kolomenskiy Posad” to be an unfair competition act.

It should be noted that the disagreements between these two companies have arisen not for the first time. Previously LLC “Kolomenskaya Pastila” had filed a statement of claim to the Arbitration Court against LLC “Kolomenskiy Posad.” The plaintiff, whose interests were represented by the lawyers of the company “Zuykov and Partners,” had filed a petition to the court on suppressing the illegal actions of the defendant. The court dismissed the claim in full. LLC “Kolomenskaya Pastila” appealed to the Court of Appeal. However, as a result of the consideration of the case, the appeal petition was not satisfied, and the decision was upheld. Then the plaintiff filed a cassation appeal to the Intellectual Property Court. Having considered the appeal of LLC “Kolomenskaya Pastila,” the court came to a conclusion on the incorrect application of the rules of the substantive and procedural law by the Court of First Instance and the Court of Appeal and forwarded the case for a new consideration. Based on the results of a new consideration of the case, the Arbitration Court satisfied the statement of claim of LLC “Kolomenskaya Pastila” in full.

LLC “Kolomenskaya Pastila” is a well-known manufacturer of pastille. The company's management focuses on the product packaging design, as well as on the means of individualization used for various kinds of pastille. For these purposes, LLC “Kolomenskaya Pastila” has registered the following trademarks: “Sobriety,” “the Museum of the Disappeared Taste,” as well as a number of commercial designations: “the Russian Beauty,” “the Pastille Factory Museum in Kolomna” and others.

The Commission of the OFAS Russia had considered the materials submitted by LLC “Kolomenskaya Pastila,” according to which the company-defendant LLC “Kolomenskiy Posad” also manufactured and sold the similar confectionery products. In order to promote the products, the defendant had used illegally the trademarks registered to LLC “Kolomenskaya Pastila,” what, in the applicant's opinion, was an unfair competition act. The defendant did not agree with the applicant's position, arguing that the designations used by it had been developed independently of the applicant and solely in the interests of LLC “Kolomenskiy Posad.”

Analyzing the materials of the case, it can be concluded that in determining the legality or illegality of the defendant's actions, the Commission of the OFAS Russia establishes the following facts: whether the applicant and the defendant are competitive entities; whether the companies distribute the products on the territory of a single commodity market; whether the defendant’s actions should be considered to be unfair competition. In the case of LLC “Kolomenskaya Pastila” and LLC “Kolomenskiy Posad,” we can talk about the presence of a number of features, confirming that the applicant and the defendant are competitive economic entities. LLC “Kolomenskaya Pastila” and LLC “Kolomenskiy Posad,” according to an extract from the Unified State Register of Legal Entities, are engaged in the same activity – the manufacture of chocolate and sugary products. Both entities are located in a close territorial neighborhood, they have a single market of products sales. In determining the illegality of the defendant's actions, the Commission of the OFAS Russia established that LLC “Kolomenskiy Posad” had made consistent steps to acquire and use the exclusive rights to the trademarks used by the applicant for the individualization of the products, but which it had not registered as a means of individualization.

The information submitted by the applicant gives evidence of the fact that the packaging design, as well as the means of individualization, used by LLC “Kolomenskaya Pastila” with respect to the manufactured products, allow the consumers to identify the product as the product belonging to a particular seller. On this basis, it follows that the defendant’s actions for the registration of the designations, which are confusingly similar to those registered to the applicant, have been aimed at limiting and infringing the rights of LLC “Kolomenskaya Pastila” in a competitive market.

Having considered the evidence submitted by LLC “Kolomenskaya Pastila” and the lawyers of the company “Zuykov and Partners,” and also guided by the rules of the current legislation, the Commission of the OFAS Russia recognized the actions of LLC “Kolomenskiy Posad” (namely, the barriers to the activities of a competitor, copying the packaging exterior of LLC “Kolomenskaya Pastila,” etc.) as an unfair competition act. With respect to the defendant, the binding order to stop the violations of the antimonopoly legislation was issued, and the case materials were forwarded to initiate a case on an administrative violation under Article 14.33 of the Code of the Russian Federation on Administrative Offenses.

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Author of article

Aleksandra Pelikh

Aleksandra Pelikh

Head of Department / Senior Lawyer