A non-use court action is routine for the IP court. Every year several hundred cases are considered and granted. Sometimes, however, a cancellation action stumbles at unexpected obstacles.
Heineken United Breweries initiated a court action in 2016 at
the IP court against trade mark WINTER HUNT,
Heineken appealed the ruling of the IP court to the cassation instance court which is the Praesidium of the IP court (there is no appeal route at the IP court).
The Praesidium of the IP court noted that the Commercial Court of Moscow had recognised Mr Yezhikoff as insolvent and initiated a six month procedure of disposal of his property. The IP court explained that the exclusive right for the disputed trade mark was a property right and it should be included in the bankruptcy assets. As a result, the case on termination of the right for the trade mark should be considered within the framework of the bankruptcy case. It justified the ruling of the first instance IP court stating that according to the Code of Commercial Procedure, the case should not be accepted for consideration if the claim will be considered within the framework of a bankruptcy case.
Heineken did not agree with this statement and argued that the
case should be under the jurisdiction of the IP court and should
not be considered by the Commercial Court of Moscow. The argument
was based on the earlier ruling of the Supreme Commercial Court
which stated that only property related claims of creditors against
the debtor should be considered within the framework of a
bankruptcy case, and that too, only after the court recognises the
debtor as bankrupt. Heineken is not a creditor of the trade mark
owner. Heineken further argued that the right for a trade mark was
not a proprietary right and at the time of initiating a court
If a business has stopped its activity and is undergoing bankruptcy proceedings, its property should be sold according to bankruptcy law. When the court starts bankruptcy procedures, all claims not made in connection with the bankruptcy case should be left out of the proceedings.
The non-use claim was filed by Heineken after the start of the bankruptcy proceedings hence the non-use case cannot be examined. Nevertheless, Heineken is not deprived of the right to protect its rights. The trade mark is included in the bankruptcy assets and will be sold together with other property items.
The trustee of the bankrupt entrepreneur appointed a meeting of
creditors on November 29 2017 where the controversial trade mark
was going to be sold. The starting price was $50. As a result of
the auction the mark was finally sold for $500 to
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