The administrative case was terminated due to the absence of an administrative offense.
On June 27, 2016, the Department of Justice for South Kazakhstan Region (hereinafter referred to as the Department) drew up a protocol on an administrative offense against individual entrepreneur M. (hereinafter referred to as IP) under Article 158 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) for the illegal use of someone else's trademark. By the resolution of the specialized Administrative Court of Shymkent dated July 12, 2016, M. He was found guilty of committing an administrative offense under Article 158 of the Administrative Code and brought to administrative responsibility under this article with a fine of 40 MCI in the amount of 84,840 tenge with confiscation of an advertising banner with the image of the trademark "HELIX" stored in the warehouse of the Department, followed by its destruction. By a resolution of the South Kazakhstan Regional Court dated August 8, 2016, the decision of the court of first instance was left unchanged, and M.'s complaint was dismissed. Having heard the arguments of the prosecutor's protest in support of the arguments of the prosecutor; M., who was brought to administrative responsibility; the representative of the Company A., who supported the protest; the objection of the representative of the Department, having examined the case materials, the specialized judicial board considers that the prosecutor's protest must be satisfied on the following grounds. Local courts, recognizing M. guilty under Article 158 of the Administrative Code, this was motivated by the fact that in his activities during the sale (replacement) of automotive oils, the latter used an advertising banner with the image of someone else's trademark "HELIX", the copyright holder of which is IP "KUL" K. (hereinafter – IP K.).
The administrative case was terminated due to the absence of an administrative offense.
These conclusions of the courts are unfounded and contradict the circumstances of the case on the following grounds. As follows from the materials of the M. case, according to the consignment agreement No. TM16/140 dated January 18, 2016, concluded with T LLP (hereinafter referred to as the partnership), it sells products under the trademark "S". In turn, the partnership, based on a distribution agreement dated December 1, 2014, is the official distributor of the Dutch-British oil and gas company RDS (hereinafter referred to as the "S" company), with the right to use trademarks, sell, promote and advertise products. For these purposes, the distribution agreement provides for the authority of the partnership to attract distributors in the territory of the Republic of Kazakhstan to sell the goods of the company "S". According to the certificate No. 1889 dated June 9, 1995, issued by the National Patent Office of the Republic of Kazakhstan, the owner of the trademark "HELIX" for goods and services of Class 4 – industrial fats and oils (except for edible fats and oils, as well as essential oils), lubricants, combustible compounds (including gasoline for engines) and lighting materials has been the company "S" since 1989. Whereas, according to the certificate of the Ministry of Justice of the Republic of Kazakhstan No. 51299 dated March 13, 2015 for the trademark "HELIX", the copyright holder of which is IP K., according to class 35 is the demonstration of goods; information and advice to commercial consumers; advertising and business management, business administration, office service, The sale is an auction, etc. This circumstance indicates that the trademark "HELIX", owned by K., is not associated with industrial, machine oils, lubricants, combustible compounds and lighting materials. From the extract of the State Register of Trademarks of the Republic of Kazakhstan provided by the National Institute of Intellectual Property of the Ministry of Justice of the Republic of Kazakhstan, it follows that the trademark registration has been extended until October 21, 2023, and the exclusive right to the trademark (for goods and services of Class 4) transferred to SBIA. In addition, in the advertising banner used by M., the trademark "HELIX" was produced with the indication of the name and logo of the company "S", that is, the signs listed in the advertising banner are inseparable from each other and directly indicate that the trademark "HELIX" belongs to the company "S". At the same time, according to the HELIX trademark certificate issued by S, the lettering style is made in a straight font in a red color combination, while the HELIX trademark owned by IP K., according to the certificate, is made in an italicized style with a bias and in a black color combination.
Thus, the trademark in the advertising banner of M. company "S" differs from the trademark of K. and there can be no doubt about the manufacturer, the product itself and its place of origin. Along with this, M. was provided with a notarized letter from the company "S", which confirms consent to the use of the trademark "HELIX" and its advertising by distributors involved by the partnership, including him. In this regard, the use of an advertising banner by him in the implementation of the sale and replacement of motor oil products under the trademark "HELIX" of the company "S" is legitimate. Under the circumstances described, the specialized judicial board agrees with the arguments of the protest that court decisions are subject to cancellation with the termination of proceedings on an administrative offense against IP M. due to the absence of elements of an administrative offense in his actions provided for in Article 158 of the Administrative Code. In accordance with subparagraph 1) of Article 840 of the Administrative Code, the inconsistency of the court's conclusions on the factual circumstances of the case, as set out in the decision on the administrative offense case, with the evidence examined in the case is the basis for the cancellation of the judicial act. In view of the above, the specialized judicial board of the Supreme Court annulled the judicial acts of the local courts. Proceedings in the case of an administrative offense against IP M. terminated due to the absence of elements of an offense in his actions, provided for in Article 158 of the Code of the Republic of Kazakhstan on Administrative Offenses. The protest of the Deputy Prosecutor General of the Republic of Kazakhstan is satisfied.
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