On June 3, 2020 the IP Court, acting as a cassation instance court has studied a plea of an individual entrepreneur, Mr. Zakharov Andrey, a defendant in A76-23430/2019 case. The defendant appealed against a decision of Chelyabinsk region commercial court, which during in absentia proceedings found him to be an infringer of exclusive right to IR 1299228 trademark and copyrighted toys’ designs, adjudging a compensation of 170 thousand rubles (about USD 2400) in favor of Alpha Group Co., Ltd. This decision was later supported by 18th Court of Appeals.

Having disagreed with both acts, Mr. Zakharov pleaded for a retrial, claiming a wrongful estimation of evidence and groundless conclusions, not based on case materials.

The IP Court having reviewed the case, found no grounds for a retrial. As follows from the materials available, a fact of counterfeit toys’ selling was proved by a cashier’s receipt, video footage of purchase and a purchased toy, which is marked by claimant’s trademark and also copyrighted, being a work of visual art. There was no evidence, proving that some other toy was purchased.

A defendant’s notion on that he had not been allowed to present evidence due to non-informing on hearings, was also dismissed, as the case materials have confirmation on sending a due court notice to the defendant’s officially registered address.

Concerning a compensation amount, the IP Court has pointed out that the claimant had demanded a minimum allowed fixed size compensation of 10 thousand rubles per each act of infringement. That totaled to the above amount, which could not be deemed groundless and excessive with regards to case circumstances. As a cassation case court, the IP Court is not allowed to revise actual fact found by first instance and appeal courts.

Hence, the IP Court found no grounds for a re-trial, supporting the lower courts’ judicial acts. Due to a special provision of the Art. 291.1 of the Commercial Procedure Code, forbidding a second cassation trial for in absentia proceedings, this decision cannot be further appealed.

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