The government has come up with a way to distinguish Russian goods from imported ones. The true attitude of Russians towards domestic producers
In order for the manufacturer to be able to prove that the products are manufactured in, he should indicate the level of localization of production as a percentage, says a government official who takes part in considering issues related to the implementation of the import substitution program.
In order to help resolve this problem, the Ministry of Industry and Trade has prepared a draft document that is designed to specify the criteria by which it will be possible to determine with certainty whether a particular product should be classified as a domestic product. In addition, he describes what should be considered as goods, the analogues of which the Russian industry does not produce. This week the examination of this project will be completed, and the commissioning can be expected closer to the middle of summer. This resolution has not yet come to the Ministry of Economic Development, officials of this department said.
There are several main distinguishing features inherent in Russian goods. The project outlines a list of conditions and processes in Russia, the percentage of the cost of raw materials and imported components in the selling price finished product. The calculation must be made according to the value declared at customs or according to the documented price of their primary sale in Russia, the cost finished products formed taking into account transport costs.
In addition, a special clause deduced an indispensable condition that the manufacturer is obliged to conduct research and development activities, give preference to Russian citizens, etc.
The head of the Ministry of Industry and Trade, Denis Manturov, said during his speech this month that as various criteria are prepared, this document will be supplemented with other items.
Signs by which the fact of the absence of analogues will be determined Russian production, two are mentioned. This kind of product should not have identical characteristics, physical, chemical and other properties that are not related to its appearance, and at the same time affect the operation by more than 20%. Another sign is the selling price and the level of operating costs.
With regard to products that are produced for the needs of the defense department, already now only components made in Russia are needed, says an employee of a company operating in the military-industrial complex. According to him, there are imported components in some civilian devices, which will need to be abandoned in order not to contradict the new rules. However, since the dollar has become more expensive, it is much more profitable to use Russian components.
For companies operating in the automotive industry, the criteria have been formulated and are already in effect, according to Sollers. It also clearly spells out the responsibilities of such companies related to the degree of localization, specific obligations regarding the creation of various research centers on Russian soil and the mandatory organization of a full engine manufacturing cycle.
Companies engaged in import substitution will be stimulated by subsidies.
Various representatives of the business community note that now, due to the increased attention of the authorities to the issue of import substitution, companies whose products fully meet the requirements for Russian manufacturer may, in theory, hope for certain bonuses. However, here a significant question arises, in what format the preference will be. Would prefer a carrot or a stick, asks the representative of the RSPP.
The government says that incentives in the form of targeted investment agreements are provided for enterprises that meet the criteria. He, in addition, indicates that it will still be possible to provide an order to only one supplier if it is a participant in a special investment contract.
The Ministry of Industry and Trade has already started accepting applications from companies wishing to take part in such projects, according to information on it. The conditions say that the state will provide subsidies that can be used to reimburse costs for servicing loans taken from Russian financial institutions in the period from 2014 to 2016. Russian enterprises with projects whose cost will not exceed 5 billion rubles can participate in this casting.
Parallel considered possible admission Russian enterprises to government purchases. For this purpose, a number of documents will be developed, in accordance with which the main criterion for admitting products to public procurement will be their production in the member countries of the Eurasian Economic Union. IN Russian government note that in order for a product to be considered Russian, all components must be produced on the territory of the EAEU.
The idea of forcing foreign enterprises wishing to take part in public procurement to build a full production cycle in Russia over the course of several years has been studied in the government for more than one year. However, the requirements under which companies or their products are considered to be manufactured in the Russian Federation are not sufficiently specified, this state of affairs can lead to various abuses, some foreign entrepreneurs feared.
The priority of Russian digital products over foreign ones for government agencies enshrined in law No. 188-FZ, adopted last year. Since January 1, 2016, a register of domestic software has been launched in Russia, with the help of which the choice of the services necessary for the authorities takes place. Currently, the list contains 1962 products according to such classifications as databases, operating systems, office applications, server software and others.
In the event that the development of Russian programmers is not suitable, the customer is obliged to publish the rationale for refusing to purchase.
The document applies to government officials, but since the spring of 2016, the government has started talking about transferring these rules to state corporations and companies with state participation. In July, the media even reported that First Deputy Prime Minister Igor Shuvalov sent out a directive to enterprises, which refers to the need to opt for Russian software.
In a conversation with the press service of Rostelecom, Gazeta.Ru was told that the operator is interested in increasing the share of domestic software in its IT systems and prefers a Russian manufacturer, other things being equal - price, quality, reliability, service support.
“However, it is important for us that import substitution does not reduce the quality of software and does not increase the company's costs,” said Irina Zhabrova, head of the B2B/B2G segment promotion.
According to a representative of Rostelecom, the operator is already actively using domestic software. “We are trying to produce some local developments for BSS systems using alternative solutions, including those supported by communities. The most critical type of software for our business is OSS/BSS systems. Most of these systems in Rostelecom are built on Russian platforms (billing, line accounting systems), and small businesses often act as our partners in these implementations,” Zhabrova said.
Russian Railways told Gazeta.Ru that "a significant part of the company's IT landscape is formed by domestic solutions." "Technologies and algorithms used in automated systems main technological processes Russian Railways are Russian developments.
Even in those cases where the underlying technological platforms of foreign production, such as SAP, are used, all the developments that are carried out on their basis are domestic, ”the company said.
In order to implement the import substitution policy, the company is considering the possibility of increasing the share of domestic software, in particular, the introduction of enterprise management systems (ERP-systems) of domestic production.
“In order to assess the prospects for cooperation with the largest domestic suppliers of this class of systems - Galaktika and 1C companies - research laboratories have been created. The decision to use a new software will be accepted taking into account the assessment of software performance and scalability, functional content and total cost of ownership,” the Russian Railways press service said.
Aeroflot and Sberbank declined to comment.
Toughening and punishment
In the spring, it was reported that such departments as the Ministry of Economic Development, the Ministry of Communications and the Ministry of Industry and Trade were proposing to introduce fines for refusal by government agencies to purchase Russian software. But this idea was later abandoned. So far, the law is advisory in nature.
At the end of March, Minister of Telecom and Mass Communications Nikolay Nikiforov during government meetings he told the President of Russia that the Ministry of Telecom and Mass Communications, together with the Federal Antimonopoly Service, would catch government customers by the hand, who “in the old fashioned way prefer to buy foreign software, despite the fact that similar Russian solutions have appeared.”
The position of the Minister, apparently, has not changed. So, at a joint venture with Rostelecom and the department information technologies(DIT) Moscow conference held on Tuesday, September 27, Nikiforov drew attention to the fact that 2016 was relatively calm, but next year it won't be like that anymore.
According to the head of the Ministry of Communications, as part of the import substitution policy in 2017, more inspections by regulators will be initiated. Nikiforov called this crackdown and added that the Federal Antimonopoly Service, the Prosecutor General's Office and the Accounts Chamber would carefully check the implementation of legislation on the procurement of Russian software.
“We are for the purchase of mainly domestic software products with the money of Russian taxpayers and state-owned companies,” the Minister of Communications said.
Nikiforov noted that the transition to domestic software is a complex work. This includes the public procurement law, ministry projects, tax cuts for Russian developers, and the construction of technology parks.
The head of the Ministry of Telecom and Mass Communications believes that for a long time it was convenient for government agencies and companies to purchase programs and services from foreign organizations, because thanks to the large funds allocated for marketing, customers received additional bonuses. Among them, the minister named foreign trips and special attention.
"Now there is only general documents, which speak of the need to switch to domestic technologies, and plans should be targeted for a single ministry and state-owned company. This will allow us to take into account the specifics of each department and enterprise,” says Alexey Strelnikov, Head of the Industry Solutions Department of the Infrastructure Solutions Department of the Softline group of companies.
According to the expert, the transition to domestic software is hampered by the fact that consumers are accustomed to foreign technologies and it is very difficult to refuse investments that were made in these projects.
“The mechanism of fines is not always working. It is better if there are indicators that must be achieved, and the person responsible for the implementation of these indicators will be able to independently decide internal matters”, Strelnikov noted.
The first victim of the FAS
So far, the FAS has managed to grab the hand of the Ministry of Construction, which in July summed up one of its electronic auctions. Geocapital became its winner, which did not suit the New Cloud Technologies company, which owns the My Office software package. The enterprise, whose products are recorded in the register of domestic software, complained to the Federal Antimonopoly Service.
The regulator considered that the justification of the Ministry of Construction about the impossibility of complying with the ban on foreign software was drawn up with violations. Among them is the lack of indication of the characteristics of software products from the register of domestic software, similar to the object of purchase.
The FAS also noted that the customer included Russian and foreign solutions in one purchase, while pointing out the impossibility of complying with the ban on purchasing foreign software products. This, in the opinion of the department, misleads the bidders.
Due to the fact that a contract was concluded as a result of the auction, the FAS decided not to issue an order to eliminate violations. However, she decided to transfer the materials of the case to the Office for Controlling the Placement of State Orders for initiating cases of administrative offenses.
“The FAS no longer had the right to cancel the auction, since at the time of the consideration of the case, the contract of the Ministry of Construction had already been concluded.
Cancellation of auctions is now possible only in court. It is for this reason that we decided to create a precedent and try to defend our interests as a domestic developer in court,” Gazeta.Ru was told in the legal department of New Cloud Technologies.
The company estimates its chances of winning as average. “Here it is more important to create a precedent, since so far on such issues there have been conditions for limited judicial practice", the company concluded.
The FAS failed to promptly respond to Gazeta.Ru's request.
As early as this summer, the government may adopt criteria for classifying products as Russian. Goods that meet all requirements will be given priority in public procurement
Buy Russian
It is easy to prove that your product is made in Russia by “simulating” a percentage of the level of localization, says a senior government official participating in the discussion of import substitution issues: “Everything is considered at customs value, it is underestimated, overhead costs and expenses that are procurement of components in the country. It turns out that we are creating a Russian product, which in fact is not. We would like other conditions."
To solve the problem, the Ministry of Industry and Trade has developed a draft resolution that should clearly regulate the criteria for classifying products as Russian, and outlines what should be attributed to products whose analogues are not produced in the country (such equipment is not subject to VAT when imported). This week, the assessment of the regulatory impact of the document should be completed, the resolution may be issued before the end of June, says a RBC source. The project has not yet been submitted to the Ministry of Economic Development, a representative of the ministry told RBC.
There are several criteria for Russian products. The document (the project is posted on regulation.gov.ru) stipulates a list of conditions and operations in Russia, the percentage of the cost of materials and components from abroad in the price end products. It should be calculated at the customs value when they are imported or at the documented price of their first sale in Russia, the cost of industrial products is determined taking into account the cost of delivery from the factory.
It also stipulates a mandatory condition that the manufacturer must carry out research work, involve Russian citizens in the work, and so on.
For each industry, there are individual indicators. In the document, they are in eight industries - medical equipment, pharmaceuticals, electronics and microelectronics, machine tool building, automotive industry, special engineering, photonics and lighting engineering, electrical engineering and electric power industry. There are several dozens of product names in the appendices, for which separate conditions are offered (see examples in the inset).
Minister of Industry and Trade Denis Manturov said in an interview in a thematic supplement to Kommersant in May this year that as the criteria for other products are worked out, “ The resolution will be expanded and supplemented with new positions. RBC's source in the government says that work is underway on 13 industry regulations.
There are two criteria for classifying industrial products that have no analogues in Russia. P Products should not have the same technical and operational characteristics, physical, chemical and other properties, not related exclusively to its appearance, which affect its operation by more than 20%. The second criterion is the price and cost of operation. For goods that are produced in Russia, a difference of more than 20% in the cost or operating costs is taken into account.
The list of such products will be adjusted, says a source in the government. It is assumed that the CCI and Russian fund technological development, follows from the document.
Business awaits clarification
“So far, calls for localization of medicines and substances remain only political calls, but this problem cannot be solved by criteria alone. Now there are not only criteria, but also a clear confirmation procedure. For example, in order to name your company as a manufacturer of local products, it is enough to simply tick the box when placing an application on the public procurement website - and you will immediately receive 15 percent preferences, ”complains the head of the industry department for pharmaceuticals and biotechnology“ Business Russia» Zakhar Golant.
In pharmaceuticals, there are completely non-obvious criteria that need to be taken into account, he adds: “There are many drugs where the locality criteria are not the same even in separate category- for example, tablets or liquid: the cost of medicinal substances for drugs in ampoules can reach 80%, and in tablets it is an order of magnitude less. How to count?
For the products that the company produces and supplies, for example, to the Ministry of Defense, 100% domestic components are already required, says an employee of one of the companies producing photodetectors. According to him, some devices for the civil sector contain foreign components, which will have to be abandoned in order to comply with the new standards (according to the criteria developed by the Ministry of Industry and Trade, the share of foreign components in the manufactured goods of this segment by 2019 should not exceed 30%). But due to the high dollar rate, domestic components are now more profitable to use, RBC's interlocutor noted.
For representatives of the automotive industry, the criteria are spelled out in the already existing government decree No. 166, recalls a representative of Ford Sollers. It also spelled out the obligations of automakers, including the level of localization, the obligations to organize a research and development center in Russia and the creation of engine production.
Whip or gingerbread
Representatives of the business community interviewed by RBC say that now, given the increased attention of the state to import substitution programs, companies that meet the criteria for a “Russian product” manufacturer could count on preferences. “But here is a global question - it will be in the format of a stick or in the format of a carrot. What is it - a bonus for those who meet the criteria, or a restriction for those who do not fall under these criteria, ”says a source close to the bureau of the board of the RSPP.
“We will tie the implementation of special investment contracts to the resolution,” says a government official. He adds that the possibility of placing an order with sole supplier if the executor of such an order is a participant in the special investment contract.
The Ministry of Industry and Trade began accepting applications for participation in special investment projects in April this year, according to a message on the website of the department. Within the framework of projects, the state provides subsidies to compensate for part of the cost of paying interest on loans received in Russian banks in 2014-2016 for projects in the field of civil industry under the state program "Industrial Development and Increasing its Competitiveness". Companies with projects worth up to 5 billion rubles can participate in the selection. Subsidies are provided for loans for a period of at least three years, subsidized by 0.7 of the key rate of the Central Bank under a loan agreement.
It is assumed that other preferences will be offered for companies that meet the criteria, says First Deputy Chairman of the Public Council under the Ministry of Industry and Trade Anton Danilov-Danilyan. “If you really are a full-fledged Russian company and produce a product according to these criteria, then it is much easier to get help in state institutions development, he says. “Companies will be able to count on assistance in expanding production and in insurance to enter export markets.”
The admission of companies to public procurement is also discussed separately. It is planned to develop draft resolutions, in accordance with which the condition for the admission of goods to public procurement will be their production in the countries included in the Eurasian economic union, follows from the documents of the Ministry of Industry and Trade. “To be a Russian product, the components must be from the EAEU countries, including Russia. This is a must,” a government official told RBC.
The idea to oblige foreign companies wishing to participate in public procurement to localize production in Russia for several years has been discussed in the government for several years. But the criteria by which companies or their products are recognized as localized are not described in sufficient detail, this can lead to abuse, expressed concern at the beginning of this year in the Association European business, follows from the presentation of the organization.
In 1961, the surrealist artist Salvador Dalí painted the lollipop logo for a Spanish company owned by the Bernat family. The lollipop was called ChupaChups. Dali was a recognized master of outrageousness, but he could not even imagine that in 2001 Russia would launch the production of a lollipop with the defiant name "Lizun-Sosun", whose design exactly repeated the design ChupaChups. This product owes its appearance to Ilya Averyanov, the owner of the Menshevik confectionery factory.
According to Averyanov himself, the remake ChupaChups turned out to be quite successful: in the very first three months of production, Lizun-Sosun, without any advertising, ate 30% of the Russian market from its Spanish twin (company ChupaChups provides other information). There is only one hitch - direct copying of the world famous brand seems to be a very dubious technique. But on this score, Averyanov has a theory that explains why he is right, and not the Spaniards.
Twin products
In the Soviet Union, the word "proprietary" came into use, that is, produced abroad. Such a product was opposed to the faceless unreliable domestic "stamping". In the early 90s, this concept devalued almost as rapidly as the national currency - it turned out that not all perfumes Chanel made in France and not every pair of jeans Levi’s related to the American company of the same name. The country was flooded with low-quality fakes of two types: those that looked exactly like the original or very similar to it (like players Pavasonic and sneakers Reebuk). Talking about the size of the damage to the legal economy then simply did not make sense - the proportion of fakes was too high.
Later the meaning came. For example, two years ago, the damage caused by pirates was only foreign companies, working in Russia, was estimated at $1 billion. The amount is rather big, but at the same time no one argued that the market itself had become much more civilized. By that time, Russian companies had created trademarks comparable in value to Western ones (take the same Baltika or Wimm-Bill-Dann). A marketing department appeared in every more or less serious company, and unscrupulous competitors who steal intellectual property began to be dragged through the courts.
However, the stricter the market rules, the more exotic the exceptions to them. Even now, when the time of rampant piracy has passed, some companies creatively use other people's brands. "Menshevik", which produces, in addition to sweets "Lizun-Sosun", also chewing gum "Turbo Naduv" (very reminiscent of Turbo produced by a Turkish company Kent) And lifeis… life(a variation on the theme of the Turkish Loveis…) is just one example.
Great plagiarist
Ilya Averyanov is 34 years old, he is a graduate of the Physics Department of Moscow State University. He went into business back in 1988 - together with classmates he built villages on the shores of the Arctic Ocean. A month of hard work brought up to 10 thousand rubles, with this money you could buy a Volga. When Averyanov tells what he did for the next ten years, it is almost impossible to follow his thoughts: it seems that you are shown a cut from Parfenov's program “The other day. 1991 - 1999". stock exchange, exchange office, temporary job in Germany on the conveyor Daimler-Chrysler, instant drink Yupi, tailoring curtains, stew and washing powder "7 / Ya", construction of cottages on Rublyovka. However, chewing gum and lollipops run like a red thread through Averyanov's work biography, the same ChupaChups. He has been trading in these goods since 1993, and by 1997 his company's turnover reached a maximum of $170 million.
Then, as you know, there was a crisis. And then Averyanov decided to make chewing gum himself. “I went to Strasbourg, where I took production courses (in Russia there was no one to learn from), and in 1999 at an exhibition in Düsseldorf I bought all the equipment for my factory,” says the entrepreneur. He is very fond of referring to the classics of Marxism-Leninism: “We took the newest equipment, because I remember very well from the works, so to speak, of Ulyanov (Lenin) that competitive advantage under capitalism is the high productivity of labor. In total, $17 million has already been invested in the Menshevik confectionery factory.
According to Averyanov, the Russian chewing gum market bubblegum is 10.8 thousand tons, and Menshevik, whose turnover this year will be $30 million, owns 60% of this market. Independent experts call other figures. According to the Business Analytics agency, Menshevik accounts for 8.7% of the children's chewing gum market in ten largest cities. At the same time, chewing gum lifeis... Life occupies 2.7% of the market (Love is... - 4.2%), and Turbo Inflating - 2.7% (Turkish Turbo has only 1.3%).
Averyanov does not hide the fact that he intentionally copied other people's trademarks: "We should not have made our own brand until there was confidence in the quality of the product." Moreover, the entrepreneur says that the company ChupaChups owes in part to him its success in Russian market. “I played an important role in the creation of this brand. Being engaged in import, I invested my intellectual and other property, says Averyanov. – At first, I delivered this product to all cities and towns for free, and then the product, having become quite common, received advertising support, which made it possible to position it in a higher price niche, and the manufacturer to receive super profits. At that moment, my functions in relation to this brand were exhausted. And I was made to understand. At first I received a discount of 15 - 20%, then my income was lowered to 10%, and over time they turned out to be at the level of 3%. To an open question: “Why are you doing this - after all, I need to develop further?” was the answer: "If you develop, you will have money, and with this money you will be able to compete with us, but we do not need this."
True, in the ChupaChups are not inclined to overestimate the role of Averyanov. "His to The company was a distributor of a Turkish companyKent, caramelChupaChups Ilya Averyanov's company did not sell for long and in insignificant volumes, ”says Chupa Chups Rus in response to questions from Ko. However, the Spaniards did not sue Menshevik either. But more on that below.
Is it possible to just take and copy a well-known trademark? The answer to the question thus formulated will be unequivocally negative, if you are not going to start your business in violation of the law. But the problem can be put differently: how far can one go in copying? But there is no longer an unambiguous answer to this question, since here we are immersed in the shaky matter of subjectivity. Of course, any large corporation, whose financial strength rests on quality, million-dollar brands, will politely remark that it is unethical to even consider using someone else's ideas. But how to be small firm who has no money for a nationwide advertising campaign?
There are a lot of examples when well-known Western companies convict local manufacturers of plagiarism. Another thing is that they do not always manage to stop the release of products that are suspicious from their point of view.
For example, cigarettes with a mouthpiece are produced in Yerevan cigaronne. Outwardly, they look like Davidoff: beveled corners of the packaging, similar curlicue font, approximately the same color. To be fair, it should be noted that cigaronne slightly larger (just because of the mouthpiece) and much more expensive (in Russia they are sold for 60 rubles per pack). Karen Adontz, CEO of a Swiss registered firm cigaronne, says that it is difficult to accuse his company of stealing ideas: “We wanted to create premium cigarettes. Given the desire of respectable smokers for comfort, we provided cigarettes with a mouthpiece, and when choosing a design, we tried to make the design in a classic style.
"Classic style" cigaronne did not go unnoticed by representatives of the German company Reemstma, producing Davidoff. In April, a lawsuit by the Germans against a Swiss company was considered in Amsterdam. However, the court objections Reemstma did not accept. "I don't think our cigarettes are like Davidoff, says Adonts. - And the accusations Reemstma were a surprise to us. They boiled down to three points: packaging design, misleading the consumer, the possibility of obtaining additional profit through advertising. Davidoff. All these accusations are unfounded. For example, the octagonal packaging we use also has Dunhill and other cigarettes. Did you receive cigaronne additional profit from someone else's advertising, it was not possible to find out: Adonts does not disclose the financial performance of the company. He only noted that in the two months of 2002, compared with the same period last year, sales cigaronne rose by 50%.
Or another case where the interests of a large Western company and a local manufacturer also intersected. A year and a half ago, the Anglo-Dutch concern Unilever sent a complaint to the Ministry of Antimonopoly Policy, demanding that the Moscow company Metelitsa stop production of the Venice cake, which looks like an ice cream cake Vienetta, Unilever products. The concern considered that the competitor was illegally using elements of the packaging design, as well as the “characteristic appearance of the ice cream cake” (more precisely, wavy patterns on the sides and at the top of the cake). Rospatent experts admitted that the consumer can indeed mix the trademarks of these two cakes. However, "Venice" (as it is written on the Metelitsa website, "about the original ice cream cake in the traditional Italian style") is still produced today. The fact is that the appeal chamber of Rospatent, to which the Russian company applied, did not agree that the two trademarks are confusingly similar. “They are similar, but not identical. So we won that dispute,” says Metelitsa lawyer Ivan Zvyagintsev. As for appearance the cake itself, then remove this claim of the concern Unilever it turned out to be even easier: all manufacturers of similar products use approximately the same equipment, so they produce identical-looking cakes.
There are, of course, examples with large firms. On the pharmaceutical market no one else than Vladimir Bryntsalov listened to accusations of copying well-known drugs. So, in December last year, the commercial director of the Hungarian company Gedeon Richter, Bela Bede, said that Bryntsalov's firm "Ferein" "is engaged in cloning drugs developed and produced by [us]." As Bede told the Interfax agency, Ferein purchased reagents from different countries and began to produce his own medicine, while copying the original Cavinton packaging. In the same way, according to a company representative, Bryntsalov launched the production of drugs that copy the Hungarian drug no-shpa and insulin. Bede noted that “not only Gedeon Richter, but also a number of other foreign pharmaceutical companies". However, Bryntsalov A CJSC, which owns the Ferein trademark, categorically denies that Cavinton or another “cloned” medicine comes out of the walls of its factory. The Russian company notes that it produces only drugs that have already lost their patent protection (which is 20 years), and even then under their own names. That is, not no-shpu and Cavinton, but Nosh-bru and Bravinton are legally registered brands.
Law is law
The Trademark Law states: “No one may use a protected Russian Federation trademark without the permission of its owner. An infringement of the rights of the owner of a trademark is the unauthorized manufacture, ..., sale ... of a trademark or a product marked with this sign, or a designation confusingly similar to it, in relation to homogeneous goods. This wording itself opens up the first opportunity for using foreign brands: if you follow the letter of the law, it turns out that you can register a trademark bmw, for example, for toilet paper, since cars and hygiene products are heterogeneous goods.
Of course, in reality, no one will allow this. “Any expert of Rospatent will refuse to register you, because bmw can be considered a well-known trademark,” says patent attorney Valery Kalinovsky. The concept of “well-known trademark” is not provided in the law, however, it is established by international agreements in which Russia participates. There is even an official procedure for recognizing a trademark as well-known - for this, it is necessary to submit an application to the Supreme Patent Chamber of Rospatent. She, in turn, may require a public opinion poll, sales data, and so on. But officially, no more than five characters have passed this procedure in Russia, so the experts of Rospatent have to be guided mainly by their own assessments: put a logo bmw they won’t allow toilet paper, but, for example, they can register the LOMO mark for the class of meat products (such a registration was made by the CampoMos meat processing plant). And who said that LOMO cameras are less known than bmw?
As for trademarks that do not directly repeat registered ones, but only resemble them, there is even more room for creativity. Kalinowski acknowledges that it is not easy to find the line when “mixing in circulation sets in”, that is, when the consumer is confused due to the similarity of brands. “There is a whole theory of how to mark a product, whether or not to use design elements of other people's goods,” says the patent attorney.
Sometimes clients come to Kalinovsky who want to register a trademark confusingly similar to the already known one: “These people want to skim the cream off the market, and then they can simply go into the shadows. They may not even wait for the final registration of the trademark, being content with obtaining primary documentation. As a rule, we do not work with such customers, as it is associated with unfair competition.” In the early 1990s, Kalinovsky, for example, had to turn down entrepreneurs who wanted to register a trademark. YvesRoche(that's right, without r at the end) according to the class of alcoholic beverages, more precisely for carbonated wine. The patent attorney was then guided by the fact that there was already a brand of perfume on the market YvesRocher, and the production of "champagne" modeled after this well-known brand would mislead consumers as to the origin of the goods. However, the wine still went on sale. Moreover, without registering a trademark at all.
Trademark type YvesRoche can be registered and simply due to an oversight of Rospatent employees - they are not robots and are not able to remember all registered marks. In addition, it is known that employees of the patent office receive low salaries, and this opens the way for corruption.
But if a fake has already hit the market, then those whose rights have been violated have to deal with it. Companies can apply to Rospatent, to the court or to the Ministry of Antimonopoly Policy, seeking the cancellation of registration, a ban on the production or sale of fakes. And it's not always empty. Quite often, companies manage to stop (or prevent) the production of products that mislead consumers. For example, n recently a brewing companyBravoInternational(beer "Bochkarev") achieved the recognition of invalid registration trademark"Bokarev". And a month ago, the Ministry of Antimonopoly Policy ordered the Menshevik company to stop the production and sale of chewing gum lifeis… life. The Turkish company Dandi Sakiz, a manufacturer ofLoveis... The Antimonopoly Office relied on the expert opinion of Rospatent, which found that the products of Menshevik were confusingly similar to Loveis... (True, "Menshevik" immediately filed for court of Arbitration a lawsuit challenging the decision of the MAP, which automatically suspends the order of the antimonopoly agency.)
But "Chupa Chups Rus" does not undertake any legal action against Menshevik, because he believes that "a company that has chosen the tactics of copying someone else's well-known product will not be able to exist on the market for a long time."
By the way, the Menshevik is really not going to stick to the current tactics for a long time. Having worked out production and sales on foreign brands, the confectionery factory intends to launch its original product, in advertising of which $1.4 million will be invested by the end of the year. The company keeps the name of its own brand in secret until the presentation, scheduled for the end of June.
Then, or rather from July 1, will come into force new version Administrative Code, which for the first time will address the issue of piracy. The Code provides for, for example, the confiscation of items containing an illegal reproduction of a trademark. Until now, the violator of the law was only obliged to remove the illegally used mark from the product or its packaging; no one attempted on the product itself. According to the law firm Baker & McKenzie, “granting trademark protection under the law on administrative responsibility means a fast, efficient, cost-effective way to enforce trademark rights.” But they also note that the effectiveness of the new mechanism will become clear only from the practice of its application by government agencies.
Maxim Kashulinsky, Vlad Kovalenko
Localization of production and import substitution: new business opportunities under sanctions
Taking place against the backdrop of Western sanctions and falling global energy prices, the weakening Russian economy negatively affects foreign trade, the volume of which Last year decreased significantly. In the current situation, the desire of the Russian authorities to assist the development of domestic industrial production seems to be expected and consistent.
A significant step in this direction was the adoption federal law“On Industrial Policy in the Russian Federation” dated December 31, 2014 No. 488-FZ, which entered into force on June 30, 2015.
Who will be affected by the law?
The law applies to almost all sectors of Russian industry. Its effect extends to economic activity related to mining, manufacturing, providing electrical energy, gas and steam, air conditioning, water supply, sanitation, organization of collection and disposal of waste, as well as the elimination of pollution.
Support for a domestic manufacturer - what business opportunities open up?
The law provides for a set of measures aimed at supporting the industry. In particular, these measures include financial support, including subsidies from budgets of various levels, the conclusion of special investment contracts, etc. In turn, the subjects to which these measures will be applied are legal entities And individual entrepreneurs operating in the industrial sector on the territory of the Russian Federation, its continental shelf and the exclusive economic zone.
As a separate incentive measure, the principle of priority of industrial products manufactured in the territory of the Russian Federation over foreign industrial products when making purchases to meet state and municipal needs and purchases has been established. certain types legal entities.
The procedure for applying incentive measures will be determined by the Government of the Russian Federation. It should be noted that for the application of the law in question, by-laws are required that develop its provisions. Some of them have already been adopted, including the Decree of the Government of the Russian Federation establishing criteria for recognizing products manufactured in Russia, as well as having no analogues manufactured in Russia (hereinafter referred to as the “Resolution”). The legal framework for the conclusion of special investment contracts has been almost completely formed. Acceptance of all normative documents necessary for the full implementation of the law is likely to be completed by the end of 2015.
Who is the domestic manufacturer?
Formally, neither the law nor the Decree uses the term “domestic producer”, but it is understood that if a person produces goods in Russia and the authorities agree that these goods are goods of Russian origin, then such person is a domestic producer and may be subject to incentive measures provided for by industrial policy legislation.
Taking into account the goal pursued by law to support import substitution, it should be expected that incentive measures will be associated with the localization of production in the territory of the Russian Federation. The basis for such an assumption is, in particular, the provisions of the Decree establishing the criteria for recognizing the goods as industrial products manufactured in the territory of the Russian Federation. The proposed criteria provide for the localization of production to one degree or another. In turn, industrial products, in respect of which the project does not provide for special requirements, will be considered produced in the territory of the Russian Federation on the basis of the criteria determined by the Agreement of the Governments of the member states of the CIS countries dated November 20, 2009 "On the Rules for determining the country of origin of goods in the Commonwealth of Independent States ".
Also, industrial products manufactured in the territory of the Russian Federation will be recognized as products manufactured under special investment contracts.
It should be noted that the Decree does not establish the procedure for confirming domestic production itself. It will be determined by the order of the Ministry of Industry and Trade.
Practical advice - what should I pay attention to?
Because it is not yet fully developed normative base to apply the law, we recommend that representatives of the business community carefully monitor the publication of draft documents that develop its provisions. Most likely, many of them will be submitted for public discussion, including within the framework of the regulatory impact assessment procedure.
In turn, when conditions are created for the "full-format" application of the law on industrial policy, perhaps the most pressing issues will be the recognition of industrial products manufactured in Russia and the application of incentive measures. For foreign investors the issues of compliance of the measures applied in Russia with the requirements of the WTO may also become topical.
Vladimir Chikin,
Partner, Customs law And international trade , Goltsblat BLP
Vladislav Safonov,
Senior lawyer, Customs Law and Foreign Trade, Goltsblat BLP