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20 April 2022

Ignorance about the right holder is no excuse from liability: court decision on the claim of the Pesnyary ensemble

The Arbitration Court of Bashkortostan satisfied the claim of the state institution Belarusian State Ensemble Pesnyary against the Production Center "Radus" LLC and Kassir.ru Bashkortostan LLC. The court ordered the defendants to pay the plaintiff 200 thousand rubles each as compensation for the illegal use of the Pesnyary trademark. The plaintiff also requested that the Bashkir State Agrarian University, Yandex.Mediaservices LLC and Afisha Company LLC be held liable as co-defendants. The organizer of the concert posted promotional materials about the future performance on the website of Radus, Kassir.ru, Afisha, and other sites.

 

Since 2010, the Belarusian State Ensemble Pesnyary owns the exclusive rights to the well-known trademark "Pesnyary". Therefore, the use by the defendants in the organization and holding of the concert of a designation confusingly similar to this trademark is a violation of exclusive rights.


Before filing to the court, the Pesnyary asked the Ministry of Culture of Bashkortostan to “stop the illegal use of the well-known trademark “Pesnyary”, but received a response, that “there is no violation of the exclusive rights of Pesnyary”, based on the documents submitted by Radus. A Radus representative in court argued that the Pesnyary trademark "does not have an original graphic style, it is purely verbal, and the fact that the word Pesnyary was used is insufficient to conclude that the word can refer to the name of the group of performers, images in the photo in the poster or banner”. The representative of Kassir.ru of Bashkortostan noted in court that they were only engaged in the sale of tickets under an agreement with Radus and “did not know and was not able to know about the management of the copyright holder, his rights in connection with his representatives of activities in the neighboring state.” The remaining defendants also requested that the claim be dismissed.


The court came to the conclusion that in organizing and holding the "counterfeit concert" the trademark of the plaintiff was used without the permission of the copyright holder. "The word "Pesnyary" on the poster is highly similar to the protected trademark "Pesnyary", as it is in large print using Cyrillic letters." The court also noted that, according to semantic analysis, the word “Pesnyary” "for an ordinary consumer of services will be perceived as fictitious, representing the name of a Belarusian vocal and instrumental ensemble.”

 

Satisfying the claim against Radus and Kassir.ru Bashkortostan, the court noted that they, “acting with the due degree of care and discretion, ... could not have been unaware of the presence of the protected Pesnyary trademark and that the defendants did not have the consent of the copyright holder to its use."


The court did not find violations of the rights of Pesnyary by the other defendants.

 

Patent Attorney, Managing Partner of Zuykov and partners Sergey Zuykov believes that "there are practically no chances to cancel or change the court decision in this situation." The expert referred to an example the claim of the Pesnyary against the Big Stage LLC, which in 2019 organized a concert of the “counterfeit” Pesnyary in Yekaterinburg. Courts of appeal and cassation in 2021-2022 satisfied the application of the trademark owner.


Source: Kommersant Publishing House

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