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01.02.2021

On January 28, 2021, the Commercial (Arbitration) Court of the Republic of Mari El rejected the motion of «Transexport-M LLC» to revoke the decision of the Federal Antimonopoly Service for the Republic of Mari El (the defendant) of August 14, 2020 on infringing the antimonopoly legislation in case № A38-6732/2020. The Decision of the Federal Antimonopoly Service was made based on the results of the inspection of the applicant's Dada Surprise Egg packaging design introduced to the market. This design was found as confusingly similar to the packaging of Kinder Joy eggs that is protected by trademarks which have been well known to the Russian consumers for a long time and which belong to «Soremartec» S.A. and «Ferrero» S.p.A.(part of «Ferrero» Group). The defendant insisted that their actions could not be considered as unfair competition against Ferrero Russia. In particular, they claimed that two disputing companies might not be considered as competitors, since they carry out different types of activities, which is confirmed by different OKVED codes. Moreover, their additional argument stated that the fact that the defendant only transports goods, and selling them to a third party is just a way of legal proof of actual transportation relationship should not be considered as placing the goods to the market. The experts of «A.Zalesov & Partners» Patent & Law Firm noted that the competition of two persons is set by the actual circumstances in the market, and since they unilaterally restrict by separate actions the goods turnover on the market it may be claimed that the two companies compete. The court also rejected the defendant's arguments that only the holder of an exclusive license can be a party to an unfair competition dispute related to the illegal use of trademarks. Based on paragraph 1 of Article 14.6 of the Law «On Protection of Competition» if one of the competitors uses trademarks legally, and the other uses designations similar to such trademarks illegally, the second one acquires unjustified benefits from such illegal use, that is unfair competition.

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