Russian Federation: Suppression Of Unfair Competition And Unfair/Inaccurate Advertising On The Internet (Advertising Or Unfair Competition?)

It is not rare that leading companies encounter unfair actions of their competitors who attempt to boost their sales by using brands that do not belong to them in their advertising. Comparing their products with the products of leading companies such competitors try to convince the customers that their products are not worse than products manufactured under famous brands while these goods have certain advantages (usually, lower price is such advantage). Sometimes they go even further and straightforwardly deceive the customers by placing third party product's advertisement with their own contact information. This practice is especially common on the Internet when placing both conventional and context advertisement.

Unfortunately, the Russian law contained gaps in respect of recognizing such actions as unfair for a long time. To a certain degree these gaps were compensated by the practice of the Federal Antimonopoly Service (FAS), which, nevertheless, was unable to replace statutory regulation.

However, the situation changed a lot when so-called «fourth antimonopoly package» (Federal law dated 05.10.15 No.275-FZ) entered into force. This law, on the one hand, summarized existing practice of antimonopoly bodies and transformed it into law. On the other hand, consideration of the draft law took a long time and certain of its new provisions were taken into consideration by FAS even before the law was formally enacted. This allowed protecting the interests of fair players on the market more efficiently even from the beginning of 2015.

According to the current legal position of the courts and FAS, in case the unfair actions are performed by the competitor in the advertisement only, such actions should be qualified in accordance with the Article 14.3 of the Code of Administrative Offences of the Russian Federation («CoAP RF») – «Violation of legislation on advertising». However, if the information which may be qualified for unfair competition is disseminated not only through advertising but also in other ways, the guilty person should be subject to administrative liability under the Article 14.33 of CoAP RF – «Unfair Competition». If the advertisement with incorrect comparison is wrongly qualified in the administrative act as unfair competition, such act may be reversed in court subsequently. Unfair players on the market who were sanctioned by FAS actively try using this to appeal such resolutions in court.

In such disputes, the important role belongs to the right holder – its position and actions. In such situations existence of a registered word trademark identical to the products' trade names provides additional protection to the right holder. By mentioning his products in their advertising, infringers inevitably infringe his trademark rights as well, which is an additional ground for bringing infringers to liability.

There is a specifically thin line in qualification of the infringements as unfair competition infringements or unfair/inaccurate advertising on the Internet. Lawyers of Gorodissky and Partners encountered this problem representing one of the biggest world manufacturers of construction equipment. Being one of the leaders on the market and manufacturing generally acknowledged high quality products our client regularly experienced situations where its competitors attempted to boost their sales by comparing their goods with the client's.

In the beginning of 2015 the client filed an application to FAS in connection with unfair actions of the competitor consisting in publishing on the competitor's website of the information containing groundless statements regarding the best quality of his products and creating false impression of his leading positions on the market.

Also, images of our client's products, exclusive rights to which belong to the client's parent company, were illegally used on the web-site. The Wayback Machine Internet archive ( was used to prove that the said information was actually posted on the website.

The most efficient way to prove that certain information was actually posted on the Internet at a given point of time is notarial certification of the relevant web pages' content. The reason is the following: when the infringer becomes aware that the right holder is making efforts to enforce the infringed rights, in most cases the infringer removes all the compromising information from all his sources. In case it happens, it is reasonable to use the Internet Wayback Machine printouts – the courts and administrative bodies accept such notarized printouts as evidence.

The right holder made reference to the provisions of subparagraphs 1, 2, and 4 of paragraph 2 Article 5 of the Law «On advertising» which define unfair advertising as advertising that contains incorrect comparison of the advertised product with other products being in circulation produced by other manufacturers or sold by other sellers, as well as discredits honor, dignity and business reputation of a competitor.

However, FAS has its own view on the information published on the website of the company. The specific of this view is that the said information has hardly ever been considered as advertisement. FAS is of the opinion that a company's website is a kind of its virtual territory and/or shop, and placement of an information in a shop should not be considered as advertising. At the same time, certain methods of delivering such information to end users (e.g. banners, scrolling text, etc.) specifically aimed at attracting their attention, assuming that they contain all attributes of advertisement, may be considered as advertising materials even if they are placed on the website of the company.

Therefore, after admittance of the client's claims to examination FAS noted that the above-mentioned actions should not be qualified as advertisement as they do not contain its relevant features and that information published on the website is connected with products of a specific category and a specific manufacturer, and purposes of publishing such information are different from advertising. At the same time FAS stated that the competitor's actions might have the signs of violation of provisions of the Article 14 of the Competition Law.

Therefore, initially FAS qualified the infringer's actions (which was the administrator of the domain on which the said information was posted) as violation of provisions of paragraph 3 part 1 Article 14 of the Competition Law, according to which «unfair competition is not permitted, including incorrect comparison of the products manufactured or sold by one economic entity with the products manufactured or sold by other economic entities». At the same time, as was subsequently noted in the FAS' decision in this case, «the purpose of the infringer's actions of publishing the information in question is obtaining competitive advantages, including by defamation of its competitor in form of comparison of its products with the products of a competing entity (indirect defamation)».

The infringer initially denied the facts of infringements as well screenshots from web archive submitted as evidence by the claimant, but afterwards the infringer was bound to acknowledge them.

Also, there were some difficulties in proving the rights of the client's parent company to the images which were used by the infringer on his web-site. As is known, photos are protected by copyright. Therefore, in case of infringement of such rights, the ability to prove authorship of a certain person as well as the fact of transferring the relevant exclusive rights to these works from the authors to the company – right holder become crucial.

In the present case, additional evidence collected by the parent company with assistance of lawyers of Gorodissky & Partners allowed to establish that on the website administered by the infringer, the photos of products and employees were placed along with the means of individualization of the infringer. According to the information presented by our party, the said photos were made by the parent company's employees and the exclusive right to these photos belongs to this company.

Therefore, taking into consideration all the established facts of illegal use of the trademarks and the copyrighted works of our client, the relevant infringer's actions were additionally qualified by FAS as infringement of p. 4 of part 1 Article 14 of the Competition Law, i.e. the sale or other way of marketing products with illegal use of the results of intellectual activity and equaled to them means of individualization of a legal person, means of individualization of goods, works, services.

From the circumstances of the case, it can be seen how the antimonopoly body differentiated the use of information on the company's website and the Internet advertisement. The infringer did not appeal this decision.

Second case of the same client was related to advertisement on the Internet.

In this case the client applied to antimonopoly authority stating that an unidentified advertiser placed a context ad in the Google advertising platform which misled the consumers by reference to the client's products while clicking this ad they were readdressed to the competitor's web-site.

This context ad was displayed to the users who searched for the client's products through the automatic search systems. It should be noted that context advertising is advertising where the advertisement is shown in connection with the content or context of a web site or with the user inquiries entered into the search system. As was discovered during the proceedings with antimonopoly authority, the advertisement had been published on behalf of the advertiser which, as our client thinks, was closely related to one of his main competitors (though there were no formal connections between them such as mutual participation or coincidence of governing body members).

In this case the said advertiser placed information, containing the name of the product, offered for sale, which was identical to the client's product name and had a reference to the client's trademark, as well as information about the website address and the phone number of his competitor.

The placed information was addressed to the general public as it was published in the Internet with the purpose to attract attention, form and support interest to the sold products – i.e. the said advertiser published an advertisement and not just information with hyperlink to the website.

FAS decided that by publishing the ad containing false information the advertiser infringed paragraph 3 of part 3 Article 5 and paragraph 7 of part 3 Article 5 of the Law «On advertising».

Specific nature of disputes related to Internet advertising is that relationships between the parties of the advertisement agreement are established and made through the electronic means of communication. The user is assigned with a unique ID (account) which is a virtual representation of the advertiser – it is used to place orders, to approve advertisement layout, pay orders etc. Therefore, the main fact at issue in disputes related to Internet advertising is establishing connection between the account and a definite economic entity. At that, infringers often took measures making identification of their accounts more difficult (e.g. they indicate private cell phone numbers and emails on public email service as contact information). Accordingly, in such cases the claimant should try to provide the antimonopoly body with all the available evidence proving the infringer's guilt, connection of his account to illegal actions or incorrect information and if they are inaccessible to the claimant – to request on discovery of such evidence or to bring to the case the corresponding third parties who may have necessary information.

Involvement of Google LLC (Russia) to the present case, who is the advertisement distributor and who has the necessary information regarding the advertiser's actions, played the key role in this situation.

The above mentioned ad was placed through Google AdWords service which allows any user to publish in the Internet any ad not contradicting the law. The ad was disseminated on the grounds of standard-form agreement of Google AdWords service (public offer) between Google LLC (Russia) and the advertiser (by implicative actions such as accept, payment of invoices, etc.). According to the information provided by Google LLC (Russia), the advertiser's account was used more than 3 000 times in the AdWords service.

In our opinion the most important evidence that allowed establishing a link between the advertiser and the published context ad is the payment orders provided by Google LLC (Russia), which the advertiser regularly paid to Google LLC (Russia) for publishing the ads.

According to paragraph 3 of part 3 of Article 5 of the Law «On advertising» an advertisement should be deemed inaccurate if it contains untrue information on the assortment and the list of equipment of goods, as well as the possibility of purchase of them in a certain place and within a certain period of time.

Furthermore, according to paragraph 7 of part 3 of Article 5 of the Law «On advertising», an advertisement should be deemed inaccurate if it contains untrue information on the exclusive rights to the results of intellectual activity and equaled to them means of individualization of a legal entity and means of individualization of the goods.

According to point 16 of informational letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 25.12.1998 No.37 «Review of practice of considering disputes, connected with enforcement of the advertising legislation» information which is obviously associated with certain product by the customer should be considered as advertisement of this product.

Meanwhile it should be noted that word designation containing the product name and used in the advertisement at issue was confusingly similar to the client's trademarks. While disseminating this advertisement, the infringer had no authorization from our client to use the word designation similar to the registered trademark.

As a result, FAS decided that the advertiser violated paragraph 3, 7 of part 7 of Article 5 of the Law «On advertising». Commercial Court of Moscow upheld that decision.

The above cases were considered under the operation of the «old» version of the Competition Law, i.e. before the enactment of the so-called «fourth antimonopoly package», which considerably expanded the legislative regulation of suppression of unfair competition. Thus, in accordance with the Federal Law of October 5, 2015 № 275-FZ the Competition Law was supplement by the Chapter 2.1. «Unfair Competition», which prohibited, in particular, the following 7 forms of unfair competition: 1) discredit, 2) deception, 3) the acquisition and use of exclusive rights to means of individualization of a legal entity, means of individualization of goods, works or services, 4) illegal use of the results of intellectual activity, 5) the creation of confusion, 6) illegal receipt, use or disclosure of information constituting commercial or other legally protected secret and 7) incorrect comparison. This list is open, because along with the mentioned kinds of unfair competition other its forms are also prohibited.

We believe that offenses more specifically provided in the Competition Law would strengthen the enforcement practice while maintaining previously developed approaches in the differentiation of advertising and unfair competition. This will allow more effective protecting of the rights of good faith competitors and rights holders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions