Earlier, the Arbitration Court of the Kemerovo Region considered case No. A27-2605/2023 on the claim of Kiselevsky Mining Equipment Plant LLC (Kiselevsk, Kemerovo Region) to Kuznetsk Mining Equipment Plant LLC (Prokopyevsk, Kemerovo Region) regarding the obligation to stop using abbreviated corporate name (KZGO LLC) when carrying out a number of activities (OKVED). Based on the results of the consideration, the court made a decision dated 09/06/2023 to satisfy the plaintiff’s claims in full. Having disagreed with the decision, the defendant filed an appeal in which he asks to cancel the decision of the Arbitration Court of the Kemerovo Region regarding the obligation to stop using the abbreviated company name KZGO LLC.
The interests of the plaintiff in both cases were represented by the company Zuykov and partners.
Having examined the case materials, studied the arguments of the appeal, review, checked the legality and validity of the decision of the first instance court in accordance with Article 268 of the Arbitration Procedure Code of the Russian Federation, the appellate court found no grounds for its cancellation. In addition to the findings of the trial court, the appellate court noted the following grounds:
- In paragraphs 146, 151, 152 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10, it is explained that a company name is subject to protection from the date of state registration of a legal entity. In this case, the exclusive right to the corporate name of a legal entity that was earlier included in the Unified State Register of Legal Entities is subject to protection, regardless of which of the legal entities began the corresponding activity earlier. Since the plaintiff’s abbreviated company name is included in the Unified State Register of Legal Entities, they are subject to protection by the exclusive right to the company name on the basis of the second paragraph of paragraph 1 of Article 1474 of the Civil Code of the Russian Federation. From the case materials it follows that Kiselevsky ZGO LLC (plaintiff) was registered as a legal entity earlier than Kuznetsky ZGO LLC - accordingly, the plaintiff acquired the exclusive right to the abbreviated company name earlier.
- The defendant's argument that there is no likelihood of confusion is unfounded. The court of first instance concluded that there is a high probability of confusion between the abbreviated business name of the plaintiff, KZGO LLC, and the abbreviated business name of the defendant, KZGO LLC. In addition, the evidence presented by the plaintiff clearly indicates the territorial intersection of the interests of the plaintiff and the defendant, since the organizations are registered and operate in one subject of the Russian Federation - Kemerovo region - Kuzbass. Also, the panel of the court considers worthy of attention the plaintiff’s explanations that buyers of the defendant’s products repeatedly contacted the plaintiff regarding the products purchased from the defendant, believing that the seller was the plaintiff.
- The defendant's argument that the plaintiff's actions contain signs of abuse of rights due to the fact that there are other business entities with similar company names registered earlier than the plaintiff's company name is untenable. In the case under consideration, the defendant’s arguments about abuse of rights are presumptive in nature and, contrary to the requirements of Article 65 of the Arbitration Procedure Code of the Russian Federation, are not supported by evidence that meets the principles of relevance, reliability, admissibility and objectivity. In this case, the plaintiff defends the exclusive right to a company name in accordance with the norms of the current civil legislation, presenting adequate evidence of the defendant’s violation of his rights to a means of individualization. The fact of the existence of other legal entities with the abbreviated corporate name “KZGO” is not an obstacle to the plaintiff’s defense of his violated right, which arose by virtue of paragraph 2 of Article 1475 of the Civil Code of the Russian Federation, in relation to legal entities registered later than him.
- Finally, the argument of the applicant of the appeal that the claims were not subject to satisfaction in full, since the plaintiff’s Unified State Register of Legal Entities does not have OKVED codes for several types of activities, was declared unfounded, since it is based on an incorrect interpretation of the rules of substantive law. According to paragraph 152 of Resolution No. 10, the court must establish that the plaintiff and defendant have identical or confusingly similar business names and are actually engaged in specific similar types of activities established by the court. When determining the similarity of the types of activities of the plaintiff and the defendant, one should be guided by the types of activities actually carried out, which create a real threat of confusion between various manufacturers and suppliers of goods (services) in the eyes of the consumer, and not just by the types of activities specified in the Unified State Register of Legal Entities. At the same time, the fact that the controversial types of activities are not indicated in the plaintiff’s Unified State Register of Legal Entities has no legal significance, since the types of economic activities of business entities are assigned codes in accordance with OKVED, information about which is contained in the Unified State Register of Legal Entities. Codes are determined by a legal entity independently, and assigning an organization a code according to OKVED does not deprive it of the right to carry out other types of activities.
Under these circumstances, the appellate court came to the conclusion that the appellant did not provide adequate and indisputable evidence in the case materials to substantiate his position, and the appellate court did not identify any grounds for overturning the decision of the trial court established by Article 270 of the Arbitration Procedure Code of the Russian Federation.
Thus, the Seventh Arbitration Court of Appeal decided to uphold the decision of the Arbitration Court of the Kemerovo Region dated 09/06/2023 in case No. A27-2605/2023 without change, and the appeal was not satisfied.