A question is occasionally asked whether Russian courts treat foreign companies in the same way as Russian companies. The answer is usually a soothing one in that all parties in a conflict are on the same footing. The case examined below sheds more light on the stance of the courts.

Societe Jas Hennessy et Cie. sued two Russian citizens, A Komarov and N Kilo, in a criminal court for infringement of its trademark "Hennesy" (Case No 2-1615/2018). These people acted in collusion and unlawfully used the trademark for a certain period of time. A criminal case may be initiated if the damage is over $4,000 approximately. A criminal case results either in incarceration or in a fine for the accused person depending on the gravity of the offence. In this case the court imposed a considerable fine on the culprits within the framework of the criminal case and satisfied a civil claim for the amount of $35,000 joined in the same criminal case.

The infringers did not dispute the criminal sentence but objected to the amount of damages. The hearing took place on June 2018. Societe Jas Hennessy et Cie. did not appear at the hearing and asked the court to examine the case in absentia. The court confirmed $35,000 to be paid to the plaintiff.

The infringers appealed the judgment at the court of appeal. The hearing took place in April 2019 with none of the parties present. The respondents filed a written complaint in which they stated that the judgment of the previous court had not contained even a single piece of evidence showing which unlawful actions had caused the damage. According to the respondents the plaintiff referred to the lost profit but did not show how this affected his financial situation. Further, the respondents asked to lower the damages down to $300.

The plaintiff did not file any response to the complaint so the court examined the case on the basis of the documents present on file. The court confirmed that according to the general rule, damage inflicted on the property of a legal person should be compensated in full by the person who caused the damage. The appeal court stated that the infringers had been convicted of a crime and according to the judgment they had caused damage amounting to $35,000.

In its arguments, the court relied on the clarifications issued by the Supreme Court (Ruling No 23 of December 19 2003). It states that a criminal sentence cannot be questioned by the court examining civil consequences of the actions of the person in whose respect the sentence was announced. While issuing a judgment ensuing from a criminal case the court cannot discuss the guilt of the respondent but may only examine the issue of the size of the compensation. As a result, the court concluded that there were no circumstances that could exclude civil liability of the respondents. Following that, the court calculated the damage because of distribution of counterfeit goods. It multiplied the number of the sold bottles according to the price of the original bottles and found that the proceeds from sales could have been $35,000. Hence, if the goods had been sold by the trademark owner he would have received that amount of money. The court also collected $300 state duty from the respondents.

It was stated in the criminal sentence that two physical persons were guilty of a criminal offence according to Article 180 of the Criminal Code. They acted in collusion as an organised group and repeatedly infringed trademark rights which led to significant damage for the plaintiff. The actions carried out by the accused persons could not be seen as an attempt to perpetrate a crime but rather a complete crime. The complaint by the defendants aimed at lowering the amount of compensation was dismissed. The amount of $35,000 went to the trademark owner as lost profit.

Lost profit is not always easy to prove. The courts are very keen to examine evidence of inflicted real damages, as well as circumstantial damages. This case shows that judicial practice is developing. It can be expected that IP owners will have fewer difficulties claiming and obtaining judgments involving lost money.

Vladimir Biriulin