IP Court denied the cassation appeal in the "Bayu-Bai" trademark case

Earlier, Maximus LLC filed a claim with the Arbitration Court of Moscow against Godovalov LLC, seeking compensation of 6,820,000 rubles (the plaintiff later revised the compensation calculation during a retrial) for the illegal use of the trademark No. 527696 under Russian certificate.

On September 4, 2024, a hearing was held in the Intellectual Property Court on case No. A40-195148/2021 to consider the cassation appeal of Maximus LLC against the ruling of the Ninth Arbitration Court of Appeal dated May 22, 2024. We wrote about the rulings of the appellate court here.

In this case, Zuykov and partners represented the interests of a third party on behalf of the defendant - Firma "Zdorovye".

In the said cassation appeal, the company referred to the fact that the Maximus company and the Godovalov company were not notified by the appellate court of the date and time of the trial, as well as of the fact that proceedings in the case had been resumed.

In addition, during the hearing, the Maximus society also referred to the violation of the secrecy of the deliberation room by the appellate court when making a ruling to resume proceedings on the case.

The Firma "Zdorovye", for its part, believes that the plaintiff’s arguments are the result of an incorrect interpretation of the rules of procedural law, and presented evidence that:

1.    The defendant and the plaintiff were duly notified of the date and time of the trial after the resumption of the proceedings in this case;

2.    The introduction of bankruptcy proceedings in relation to the defendant does not indicate that he is not informed.

In addition, the Firma Zdorovye company drew attention to the fact that the Court of Appeal in any case did not violate the secrecy of the deliberation room when making a determination to resume proceedings on the case.

Part 4 of Article 184 of the Arbitration Procedure Code of the Russian Federation provides that the arbitration court shall make a determination in the form of a separate judicial act under conditions that ensure the secrecy of the judges' deliberations, according to the rules established for making a decision. The arbitration court shall make a determination in the form of a separate judicial act in all cases if the said Code provides for the possibility of appealing the determination separately from the appeal of the judicial act by which the consideration of the case on the merits ends. The possibility of appealing the determination to resume proceedings and the determination to refuse to suspend proceedings on the case is not provided for by law, and these determinations do not impede the further progress of the case. Since the determination to refuse to suspend proceedings on the case is not subject to appeal separately from the court decision, the court had the right to make the said determination without retiring to the deliberation room and to make it in the form of a protocol determination.

The IP Court supported the conclusion that the failure of the appellate court to retire to a deliberation room to consider the relevant issue cannot serve as grounds for overturning the contested ruling of the appellate court, adopted as a result of the consideration of the appeals on the merits.

In addition, the cassation court noted that, by virtue of Part 3 of Article 288 of the Arbitration Procedure Code of the Russian Federation, a violation or incorrect application of procedural law is grounds for changing or canceling a decision or ruling of an arbitration court if this violation led or could have led to the adoption of an incorrect decision or ruling. In the cassation appeal, Maximus does not provide arguments indicating that the violations of procedural law led to the adoption of a ruling that was essentially incorrect.

Following the consideration of the cassation appeal, the court decided to leave the ruling of the Ninth Arbitration Court of Appeal dated 22.05.2024 unchanged and dismiss the cassation appeal of Maximus LLC.