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Recent case law has confirmed that destruction of grey import is an effective remedy

At the end of the last year the Russian IP Court published its decision in case No. A40-154273/2014 arising out of trademark infringement by a parallel importer.

Under the merits of the case, the defendant imported into Russia some original goods without the trademark holder’s consent. This delivery was suspended at the customs border. Subsequently, the trademark holder filed a lawsuit seeking for a compensation as well as destruction of the imported original goods.

The courts of first and appeal instances satisfied the claim, regardless of the defendant’s argument that the imported goods were in fact original and therefore could not have been classified as a counterfeit under art. 1515 of Russian Civil Code.

On December 4, 2015 the IP Court in its cassation decision supported the approach of the inferior courts clarifying that import of original goods without the trademark holder’s consent shall constitute a trademark infringement under art. 1487 of Russian Civil Code. Therefore, such imported goods shall be deemed a counterfeit under the general rule of para. 4 art. 1252 of Russian Civil Code.

The IP Court specifically addressed that this general rule shall apply to all IP assets, regardless of whether “grey” or “black” import actually took place. Therefore, even original goods could be classified as a counterfeit and destructed, once “the purpose of application of these measures is to eliminate any possibility of introducing the goods violating trademark rights into the Russian market”.

It worth mentioning that destruction of grey import was also confirmed in the recent Supreme Court’s decision in case No. A40-26875/2014.

It seems that such court practice might significantly strengthen the position of the trademark holders and bring additional risks for the parallel importers.

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