Sergey Zuykov

Managing Partner / Patent Attorney of the Russian Federation / Eurasian Patent Attorney

18 February 2019

The representatives of the company “Zuykov and Partners” have protected the interests of the company “Liqueur and Vodka Distillery “Saranskiy” in the Court of Appeal

In September 2018, the Tenth Arbitration Court of Appeal, following the results of consideration of an appeal petition of LLC “Moscow Trading Company” to LLC “Liqueur and Vodka Distillery “Saranskiy,” whose interests had been represented by the lawyers of the company “Zuykov and Partners,” determined to uphold the decision of the first-instance court. The confrontation of the companies started, when LLC “LVD “Saranskiy” filed a statement of claim to the Arbitration Court of the Moscow Region with a request to invalidate a null and void transaction, concluded with respect to LLC “Moscow Trading Company.” During the consideration of the case, the following circumstances were investigated. Industrial design No. 56470 “A glass with a lid-label” was registered in respect of the company “LVD “Saranskiy,” with a priority date of August 27, 2003. In 2012, the representatives of the company LLC “Moscow Trading Company” filed an application with Rospatent to register a trademark in the form of a verbal designation “STOPARIKOFF” for the 32nd, 33d and 35th classes of the International Classification of Goods and Services (ICGS). The designation examination revealed in the fact that the claimed trademark reproduced the designation used in the registered industrial design. The patent holder, LLC “LVD “Saranskiy,” manufactures the products that are similar to the ones with respect of which the registration of a trademark is sought. The use of the designation being identical to the industrial design is capable of confusing a consumer with respect to the product manufacturer and it can be registered only with consent of the right holder of the protected subject matter. The specialists of Rospatent sent a notice on the results of the examination of LLC “Moscow Trading Company.” In the letter of response, the applicant indicated that the patent holder and the manufacturer of the production under the designation “STOPARIK” LLC “LVD “Saranskiy” had provided consent for the registration of the trademark for all claimed classes of the ICGS, and attached a copy of the letter of consent. Subsequently, the defendant received certificate No. 517887 certifying the registration of the trademark.

At the same time, the authorized persons of LLC “LVD “Saranskiy” did not issue a letter of consent (of April 9, 2013) to register the disputable designation to LLC “Moscow Trading Company” and were unaware of it before September 2017. The submitted authorization document was signed by the Deputy Director for Development of LLC “LVD “Saranskiy,” V.A. Chiglintsev, who did not have the appropriate authority. For this reason, the plaintiff filed a statement of claim to the court on the recognition of the unilateral transaction, which was the issuance of the letter of consent, as null and void. The first-instance court agreed with the position of LLC “LVD “Saranskiy” and satisfied the statements of claim in full. The court decision was justified as follows: according to the charter of the company LLC “LVD “Saranskiy,” the Director of the company had the right to act without a power of attorney on behalf of that company, to represent its interests and to make transactions. According to the information as of April 2013, the Director was V.N. Khrushchalin. The Deputy Director for Development, V.A. Chiglintsev, who had signed the letter of consent, did not submit the power of attorney for the conclusion of the transaction. Consequently, he had no authority to issue the letter of consent. Because of this, the unilateral transaction was null and void and it was recognized invalid by the court. The defendant appealed with a request to cancel the decision of the first-instance court and to review the case.  The arguments of the representatives of LLC “Moscow Trading Company” came down to the fact that the company was an improper defendant, because the issuance of the letter had not depended on its will. LLC “LVD “Saranskiy” objected to the satisfaction of the appeal petition and requested to uphold the decision of the court of first instance.

During the consideration of the case, the Court of Appeal came to the following conclusions. The disputed transaction is null and void, and invalid, due to the fact that it has been signed by the person who has not had the appropriate authority. LLC “Moscow Trading Company” is involved as a defendant lawfully, since the company is a beneficiary of the transaction. The representatives of the company could and should have checked the authority of the person who had signed the letter of consent. It is possible to check the necessary information by receiving an extract from the Unified State Register of Legal Entities. The actuality of the extract is checked on the website of the Federal Tax Service of Russia. Having heard the arguments of the lawyers of the company “Zuykov and Partners,” who represented the interests of LLC “LVD “Saranskiy,” having got familiar with the position of LLC “Moscow Trading Company,” having studied the case materials and having analyzed the decision of the first-instance court, the Tenth Arbitration Court of Appeal determined: “The decision of the Arbitration Court of the Moscow Region of May 29, 2018 in case No. A41-10703/18 shall be upheld, the appeal petition shall be dismissed.”

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