“Parallel import,” — comment of Tatiana Tereshchenko about the decision of the constitutional court to “Delovoy Peterburg”
The constitutional court has restricted the ban on parallel import, allowing the courts to legitimize the importation of goods without consent of the owner of the "bad faith of his behavior." Bad faith can be recognized while following the regime of sanctions against Russia and Russian organizations the owner of trademark rights, writes "Kommersant".
Tatyana Tereshchenko, the head of analytical direction of the "Prime Advice":
At present, it is difficult to give a detailed comment, because the text of the decision of the constitutional court of the Russian Federation has not yet been published. However, from the contents of the official message on the website follows that the constitutional court of the Russian Federation has done all that he could. He tested the constitutionality of provisions of clause 4 article 1252, article 1487, p. p. 1,2, article 1515 of the civil code and prohibited the application of the same sanctions for parallel importation, and the sale of counterfeit products.
It was difficult to expect him to recognize an unconstitutional rule about national principle of exhaustion of rights, which posed a problem in practice. The dispute over parallel imports has been going on for many years and is actually has a political and economic nature. The question is whose interests should be given priority, to the interests of rights holders (the principle of national exhaustion of rights) or to the interests of parallel importers (the principle of international exhaustion of rights). "Facade" is the approach to legal regulation.
The principle of international exhaustion of rights applies in many countries of the world. It means that the good circulate freely in circulation if they are put into circulation in any part of the world with the consent of the right holder. In Russia there is a principle of national exhaustion of rights, which allows the right holders to control the importation of goods into Russian territory and, accordingly, to dictate the price.
Many years at the highest levels in Russia recognize the need to abandon the national exhaustion of rights, but there are no legislative changes. It is not accidental that the constitutional court of the Russian Federation itself speaks about the prerogative of the legislator in this matter. However, the same sanctions should not be applied for the importation of counterfeit goods, i.e. fakes, and for the importation of original goods imported into the territory of the Russian Federation without the consent of the rightholder. This is what says the constitutional court. The applied measure of liability (confiscation) must correspond to the nature and gravity of the violation, taking into account the fact that the goods are eventually purchased by consumers. Fakes should not be put into circulation in principle, because it violates the interests of all – and the rights holders, and importers, and consumers. Confiscation and destruction of counterfeits are therefore a necessary and fair measure. However, in the case of original goods, albeit in circulation in violation of the principle of national exhaustion of rights, confiscation is disproportionate to the violation committed. In the context of the principle of national exhaustion of rights, the area of infringement conditionally lends itself to the relationship between the right holder and the importer. The consumer receives the same product – the original – and, perhaps, at a lower price.
In this sense, it is not accidental that the constitutional court of the Russian Federation stipulates that it is important for courts to take into account whether the right holder does not allow abuse of his monopoly position by unfairly inflating prices. Therefore, the position of the constitutional court is quite a balanced, and the proposed solution is difficult to call it half-hearted. This is a kind of compromise where the problem can be fundamentally resolved only at the policy level.