Art. 180 Labor Code of the Russian Federation: questions and answers

Article 180. Illegal use of means of individualization of goods (works, services)

1. Illegal use of someone else’s trademark, service mark, appellation of origin of goods or similar designations for homogeneous goods, if this act was committed repeatedly or caused major damage, -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to two years, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by forced labor for a term of up to two years. up to two years, or imprisonment for a term of up to two years with a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months.

2. Illegal use of warning markings in relation to a trademark or appellation of origin of goods not registered in the Russian Federation, if this act was committed repeatedly or caused major damage, -

shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by compulsory labor for a term of up to three hundred and sixty hours, or by corrective labor for a term of up to one year.

3. Acts provided for in parts one or two of this article, committed by a group of persons by prior conspiracy, -

shall be punishable by a fine in the amount of two hundred thousand to four hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of eighteen months to three years, or by forced labor for a term of up to four years, or by imprisonment for the same term with a fine of up to one hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to one year or without it.

4. Acts provided for in parts one or two of this article, committed by an organized group, -

shall be punishable by a fine in the amount of five hundred thousand to one million rubles, or in the amount of the wages or other income of the convicted person for a period of three to five years, or by forced labor for a term of up to five years, or by imprisonment for a term of up to six years with a fine of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to three years or without it.

Note. In this article, major damage is defined as damage the amount of which exceeds two hundred and fifty thousand rubles.

Article 179. Coercion to complete a transaction or to refuse to complete it
Article 181. Violation of the rules for the production and use of state hallmarks

Article 180 of the Labor Code of the Russian Federation

Article 180 of the Labor Code of the Russian Federation provides that if an organization intends to cease to exist or lay off working specialists, it should first of all take care of compliance with certain guarantees for full-time employees.

In particular, before downsizing an employee (i.e., firing), the company must first offer him other available vacancies, even if they do not correspond to his profile.

Each of the laid-off employees must be notified no later than 2 months before this specialist is dismissed.

If there is a threat of mass layoffs in the company, by virtue of Art. 180 of the Labor Code of the Russian Federation, certain measures should be taken to reduce the negative consequences of such dismissal.

In addition, laid-off employees are entitled to certain compensation.

What if due to layoffs you were fired not 2, but, for example, 5 months after the warning?

In order to warn the company’s specialists about the impending reduction, Art. 180 of the Labor Code of the Russian Federation gives the employer 2 months. But this does not mean at all that after an employee has received a warning, he must be fired within 2 months. The Labor Code of the Russian Federation does not contain a corresponding imperative norm.

So a specialist who has not been laid off 2 months after receiving a warning cannot relax.
The company has the right to terminate the employment contract with him even after the end of the specified period. At the same time, the courts proceed from the legality of dismissal, which laid-off workers often unsuccessfully try to challenge (rulings of the Moscow City Court dated November 6, 2015 in case No. 33-40687/2015, dated February 12, 2014 in case No. 33-6931/2014, etc.). You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Combating counterfeit goods by bringing the offender to civil liability

Although I gave a definition of counterfeit in an article on the topic “Ways to identify and combat counterfeit products,” I would like to start this article with a definition of counterfeit, which did not appear in the previous article.

So, in accordance with paragraph 3.16 “GOST R 58223-2018. National standard of the Russian Federation. Intellectual property. Antimonopoly regulation and protection from unfair competition" counterfeit - Goods containing any protected results of intellectual activity or equivalent means of individualization, actions with which (including production, distribution or other use, as well as import, transportation or storage) lead to violation exclusive rights of their copyright holders (for example, original products imported into the EAEU without the consent of the copyright holders, and counterfeit products with the illegal use of protected means of individualization of these goods, including designations that are confusingly similar).

According to paragraph 1 of Article 1248 of the Civil Code of the Russian Federation, disputes related to the protection of violated or disputed intellectual rights are considered and resolved by the court.

Thus, in order to bring the violator to civil liability, it is necessary to file a claim in court.

Moreover, in this category of disputes, the overwhelming number of cases are considered by arbitration courts, since the parties to such disputes are legal entities and/or individual entrepreneurs.

It is worth noting that in accordance with paragraph 53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation” (hereinafter referred to as Resolution No. 10) Application to a person who has violated intellectual rights to the results of intellectual activity or means individualization, administrative or criminal liability measures does not exclude the possibility of applying to the same person measures to protect intellectual rights in civil law. It should be borne in mind that the refusal in itself to bring a person to administrative or criminal liability does not mean the impossibility of applying civil legal measures of protection.

This means that even if the violator has already been brought, for example, to administrative responsibility on the basis of materials collected by the customs authority or the police, the circumstances established in the court decision by which the violator was brought to administrative responsibility can be used as a prejudgment when applying to court with a claim for civil liability.

In case of violation of an exclusive right, the copyright holder has the right to protect the violated right by any of the methods listed in Article 12 and paragraph 1 of Article 1252 of the Civil Code of the Russian Federation.

Paragraph 1 of Article 1252 of the Civil Code of the Russian Federation states that the protection of exclusive rights to the results of intellectual activity and to means of individualization is carried out, in particular, by presenting, in the manner prescribed by this Code, the requirement:

1) on recognition of a right - to a person who denies or otherwise does not recognize the right, thereby violating the interests of the right holder;

2) on the suppression of actions that violate the right or create a threat of its violation - to the person committing such actions or making the necessary preparations for them, as well as to other persons who can suppress such actions;

3) for compensation of losses - to a person who unlawfully used the result of intellectual activity or a means of individualization without concluding an agreement with the copyright holder (non-contractual use) or otherwise violated his exclusive right and caused him damage, including violating his right to remuneration provided for in Article 1245 , paragraph 3 of Article 1263 and Article 1326 of this Code;

4) about the seizure of a material medium in accordance with paragraph 4 of this article - to its manufacturer, importer, custodian, carrier, seller, other distributor, dishonest purchaser;

5) on the publication of a court decision on a violation, indicating the actual copyright holder - to the violator of the exclusive right.

The requirement for recognition of a right - to a person who denies or otherwise does not recognize the right, thereby violating the interests of the right holder (subparagraph 1 of paragraph 1 of Article 1252 of the Civil Code of the Russian Federation) is stated extremely rarely, since, in my opinion, it does not carry practical meaning, satisfaction Such a requirement does not actually entail negative consequences for the violator and has an impact on limiting the entry of counterfeit products into the market. In addition, it is quite difficult to prove the circumstances in support of this requirement, since from the interpretation of this rule of law it follows that a person who has applied to the court with a demand for recognition of the right to a particular object of intellectual activity must prove that he has an exclusive right to the disputed object and the fact of denial of this right by another person, resulting in a subsequent violation of this right of the copyright holder. It is quite rare that there are cases when violators openly deny the existence of a right; on the contrary, they try in every possible way to take advantage of the reputation of a well-known copyright holder and pass off their products as products coming from the copyright holder.

The requirement to publish a court decision on a violation with an indication of the actual copyright holder - to the violator of the exclusive right (subparagraph 5 of paragraph 1 of Article 1252 of the Civil Code of the Russian Federation) is also stated quite rarely, since, in my opinion, it is not a real tool for combating counterfeiting.

As judicial practice shows, the following requirements are usually imposed on persons introducing counterfeit goods into civil circulation:

on prohibiting the defendant from using disputed objects of intellectual property or means of individualization (subparagraph 2 of paragraph 1 of Article 1252 of the Civil Code of the Russian Federation);
on the collection of compensation (clause 3 of Article 1252 of the Civil Code of the Russian Federation);
on the defendant’s obligation to destroy counterfeit goods and/or tools, equipment or other means primarily used or intended to commit a violation of exclusive rights to results of intellectual activity and means of individualization (subparagraph 4 of paragraph 1 of Article 1252 of the Civil Code of the Russian Federation).

The requirement to prohibit the use of disputed intellectual property is quite controversial, since several years ago it appeared in 90% of claims related to the illegal use of intellectual property, and in most cases was satisfied by the courts.

About 6 years ago, a trend began to emerge according to which the courts began to refuse to satisfy such a requirement.

As an example, we can cite case No. A41-42379/2012 on the claim of the Nissan Jidosha Kabusiki Kaisha company against the limited liability company "AVTOlogistika" for the protection of exclusive rights to trademarks. Among other things, the plaintiff filed a demand to prohibit the defendant from using trademarks with the verbal element “NISSAN” without the consent of the Nissan Jidosha Kabusiki Kaisha company (according to certificates of the Russian Federation No. 86143, No. 319248), including the import into the territory of the Russian Federation of goods marked with the specified trademarks signs

By the decision of the Arbitration Court of the Moscow Region dated March 13, 2013, the claims were partially satisfied; the court of first instance refused to satisfy the demands for a ban on the use of trademarks. The appellate court overturned the decision of the first instance court in terms of the refusal to satisfy the claims for a ban on the company "AVTOlogistika" from using the "NISSAN" trademarks without the consent of the company Nissan Jidosha Kabusiki Kaisha (according to certificates of the Russian Federation No. 86143, No. 319248). The cassation court left the decision of the appellate court unchanged.

At the same time, the courts have now clearly changed their position regarding the requirement for a ban and refuse to satisfy this requirement, indicating that abstract requirements for a general ban on a specific person in the future at any time to use the result of intellectual activity or a means of individualization by force of law are not subject to satisfaction. (for example, the decision of the Intellectual Rights Court dated September 15, 2016 in case No. A40-195776/2015).

In addition, a similar legal approach was supported by the Supreme Court in paragraph 3 of paragraph 57 of Resolution No. 10, which states that the requirement to prohibit the offer for sale or to prohibit the sale of counterfeit goods is not subject to satisfaction if such goods belonging to the defendant have already been sold by him. Requirements for a general ban on a specific person from using in the future the result of intellectual activity or a means of individualization (for example, a ban on posting information on information and telecommunication networks, including the Internet) are also not subject to satisfaction. Such a prohibition is established directly by law (paragraph three of paragraph 1 of Article 1229 of the Civil Code of the Russian Federation).

Thus, we can conclude that at present it is inappropriate to file a request to prohibit the defendant from using intellectual property, since in 99% of cases the request will be refused.

Next, we move on to the requirement for withdrawal from circulation and destruction, without any compensation, of material media in which the result of intellectual activity or a means of individualization is expressed, as well as tools, equipment or other means primarily used or intended to commit a violation of exclusive rights to the results intellectual activity and means of individualization.

I believe that this requirement is one of the most effective ways to combat counterfeiting, but at the same time, to satisfy it it is necessary to collect a large amount of evidence, which is sometimes impossible without the involvement of law enforcement agencies.

It is difficult for a representative of the copyright holder who does not have government powers to protect law and order to enter the warehouse where counterfeit goods are stored in order to establish information that identifies the product, its quantity, and location. The above leads to the fact that a judicial act containing a requirement for the seizure and destruction of counterfeit goods without specifying identifying characteristics is not enforceable, and further execution of the requirement, which has a general reference to counterfeit goods, may lead to a violation of the rights of other persons who are not participants in these legal relations.

At the same time, if the copyright holder has managed to collect all the necessary information and the above circumstances are known for certain, he has the right to declare that the court has taken interim measures in relation to the disputed product in the form of seizure of goods that have signs of counterfeiting.

The judicial authority has the power to grant interim measures inaudita altera parte where appropriate, in particular in cases where there is a likelihood that any delay will cause irreparable harm to the right holder or there is a demonstrable risk that evidence will be destroyed, therefore injunctive relief measures can be applied by the court to ensure the execution of a court decision on the request for the seizure and destruction of goods marked with controversial means of individualization, which will allow the decision to be enforced if the requirements for the seizure and destruction of counterfeit goods are satisfied.

At the same time, it should be taken into account that goods on which the trademark is placed by the copyright holder himself or with his consent, imported into the territory of the Russian Federation without the consent of the copyright holder (parallel import) can be withdrawn from circulation and destroyed in order to apply the consequences of violation of the exclusive right to a commodity mark only in case of their inadequate quality and (or) to ensure safety, protection of life and health of people, protection of nature and cultural values. At its core, this norm is a novelty and follows from the legal position of the Constitutional Court of the Russian Federation, set out in Resolution No. 8-P dated February 13, 2018 “In the case of verifying the constitutionality of the provisions of paragraph 4 of Article 1252, Article 1487 and paragraphs 1 and 4 of Article 1515 Civil Code of the Russian Federation in connection with the complaint of the limited liability company "PAG".

In the last part of my article, I will briefly talk about perhaps the most common requirement made by copyright holders - compensation.

By virtue of paragraph 3 of Article 1252 of the Civil Code of the Russian Federation, the copyright holder, in cases provided for by the Civil Code of the Russian Federation, in case of violation of an exclusive right, has the right to choose a method of protection: instead of compensation for losses, he can demand from the violator payment of compensation for violation of this right. Simultaneous recovery of damages and compensation is not permitted.

Compensation is subject to recovery if the fact of violation is proven, while the copyright holder is not required to prove the fact of incurring losses and their amount.

When filing claims for compensation, the copyright holder has the right to choose one of the methods for calculating the amount of compensation specified in subparagraphs 1 and 3 of Article 1301, subparagraphs 1 and 3 of Article 1311, subparagraphs 1 and 2 of Article 1406.1, subparagraphs 1 and 2 of paragraph 4 of Article 1515, subparagraphs 1 and 2 of paragraph 2 of Article 1537 of the Civil Code of the Russian Federation, as well as before the court makes a decision to change the method chosen by it for calculating the amount of compensation, since the subject and grounds of the stated claim do not change.

The above rules provide for several methods for calculating the amount of compensation, which can be divided into three groups:

recovery of compensation in the amount of ten thousand to five million rubles, determined at the discretion of the court;
recovery of compensation in the amount of twice the cost of the right to use the result of intellectual activity or means of individualization;
recovery of compensation in the amount of double the cost of counterfeit copies (goods).

Paragraph 61 of Resolution No. 10 describes in sufficient detail how the amount of compensation should be calculated and what evidence such a calculation can be confirmed.

At the same time, when making a claim for compensation, it is important to remember that if the copyright holder and the violator of an exclusive right are legal entities and (or) individual entrepreneurs and the dispute is within the jurisdiction of the arbitration court, before filing a claim for damages or payment of compensation, the copyright holder must file a claim . A claim for damages or payment of compensation may be brought in the event of a complete or partial refusal to satisfy the claim or failure to receive a response to it within thirty days from the date the claim was sent, unless another period is provided for by the contract (clause 5.1 of Article 1252 of the Civil Code of the Russian Federation).

Source: https://zuykov.com/ru/about/articles/2019/07/02/borba-s-kontrafaktom-putem-privlecheniya-narushite/