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An antitrust case won by REVERA lawyers

13 May 2019

A major Russian drug manufacturer has requested assistance from REVERA.
ALLOKHOL is one of pharmaceutical products produced and distributed by this client in Belarus.

ALLOKHOL is a medicinal agent invented in the USSR. Since 1967 ALLOKHOL has been actively used by health professionals, produced and sold by various manufacturers.
In 1999, a Belarusian drug manufacturer registered ALLOKHOL trademark in its name in the Republic of Belarus.
Despite this 1999 registration, some other manufacturers, including our client, and some traders have over a long period been selling this medication in Belarusian market without hindrance.
In 2017, the trademark owner delivered a letter of claim to our client stating that our client was unlawfully using the ALLOKHOL trademark and demanded that importation, selling and other circulation of any products under the ALLOKHOL trademark in the Republic of Belarus be terminated.

It is worthwhile noting that in 2017 both minimal and maximal price of the ALLOKHOL drug produced by the trademark owner were higher than of that produced by our client.
Therewith, the main active substances of the ALLOKHOL drug and their proportions have remained unaltered up to the present.
REVERA’s lawyers have, on client’s behalf, petitioned the Ministry of Antimonopoly Regulation and Trade (MART).

MART rendered a decision acknowledging a violation of the antimonopoly legislation by the trademark owner pursuant to clause 2 article 16 of the Law for the Counteraction of Monopolistic Activities and Development of Business Competition as of December 12, 2013 (par. 2, art. 28 of the Law as of January 2, 2018) – “unfair competition involving acquisition and/or usage of an exclusive right for a means of individualisation of trader”.
The trademark owner did not accept the MART decision and lodged a claim against it to the Intellectual Property Judicial Board under the Supreme Court of the Republic of Belarus.
The Court dismissed the claim and upheld the MART decision.

Why it matters
Sometimes foreign companies approaching the Belarusian market have to deal with ‘intellectual raiders’. Such raiders’ schemes involve the following activities: they register famous brands in their name in order to eliminate competition or to demand payment from a foreign company. In such cases, production before the antimonopoly agency of before court is often the only remedy for those companies whose marks have been captured as trademarks by intellectual raiders in Belarus.
According to subcl. 1.3, cl. 1, art. 25 of the Trademarks and Service Marks Law, protection of a trademark may be terminated wh ere its registration involved any actions which have been declared involving unfair competition by the antimonopoly agency or court.
Thus, at present our client may both seek termination of protection of the ALLOKHOL trademark and continue using this trademark without fear of being persecuted by the trademark owner.

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Consultants

Pyetr Grinyuk

Associate

+375 17 226 10 26

pg@revera.by