20 September 2017

The lawyers from "Zuykov and Partners" recovered compensation in the amount of 2 044 100 rubles in favor of Russia’s well-known producer of pastille

The Arbitration Court of the Moscow Region, based on the statement from Kolomenskaya pastila LLC , the interests of which were represented by the lawyers of the company "Zuykov and Partners", recovered the compensation from the violator of the exclusive rights to trademarks in the amount of 2 044 100 rubles. This ruling was made by the court under the new consideration of the case after a range of court proceedings - from the first instance to the Intellectual Property Rights Court.

Briefly about the facts surrounding the case. Kolomenskaya pastila LLC  is known in Russia as a manufacturer of pastille - traditional sweets of Russian cuisine, and is the owner of the trademark "Disappeared Taste Museum" and "Sobriety", registered in respect of confectionery products, including pastille (class 30 of ICGS (the International Classification of Goods and Services)) and the services of museums (class 41 of ICGS).

Having identified the violation of the exclusive rights, Kolomenskaya pastila LLC  applied to the Arbitration Court of the Moscow Region with statement for the recovery from LLC "Kolomenskaya postila" (later, the company changed its name to "OMP "Kolomensky posad") of the compensation for the illegal use of the above trademarks in the amount of 2 044 100 rubles.

It was established by the case files that the Defendant carried out the production and sale of confectionery products (pastille products) using the designations on the labels that are confusingly similar to the trademarks of the Claimant. The fact of the production and sales of the products was confirmed by the on-site inspection reports.

Having examined and assessed the evidence contained in the case, the court dismissed the claim in full, explaining its ruling by the fact that the photocopies of the on-site inspection reports contained in the case files could not be regarded as proper evidence, and the calculation of the amount of the compensation shown by the Claimant was erroneous.

Disagreeing with the court ruling, the Claimant turned to the court of appeal with a complaint, in which it indicated that the copies of the inspection reports corresponded to the requirements to written evidence and the calculation of the compensation had been made using the value twice as much as the value of the goods with the trademarks placed illegally on them. However, these arguments were not taken into account by the court of appeal: the ruling of the Arbitration Court of the Moscow Region was upheld, the appeal was not satisfied.

Further, while disagreeing with the ruling of the court of appeal, the Claimant turned to the Intellectual Property Rights Court with the cassation petition pointing to the improper conclusion of the court about the absence of evidence in respect of the wrongdoing, because the fact of the wrongdoing was confirmed by the evidence presented by the Claimant: packages of the Defendant’s goods, and inspection reports, as well as the conclusion of the patent expert examination.

The IPRC did not support the arguments of the courts of the first instance and appeal instance, pointed to the wrong application of the substantive law rules in determining the amount of the compensation and breach of the procedural rules in the assessment of the evidence confirming the wrongdoing, and remitted the case for a new investigation.

As part of the new investigation, the lawyers of the company "Zuykov and Partners" presented to the first-instance court the reasoned legal position in relation to each circumstance of the Defendant’s breach of the exclusive rights to the trademarks, which led to the comprehensive review of the case files and satisfaction of the claim in respect of recovery of the compensation in full.

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