Resolution of the Plenum of the Supreme Court Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 5/29 March 26, 2009
“On some issues that arose in connection with the entry into force of part four
Civil Code of the Russian Federation"

Right to a company name
58.1. Taking into account the provisions of paragraph 3 of Article 1473 of the Civil Code of the Russian Federation, each legal entity operating in the organizational and legal form of a commercial organization must have one full company name and may have one abbreviated company name. At the same time, according to paragraph 1 of Article 1473, paragraph 2 of Article 1475 of the Code, a company name is subject to protection from the date state registration legal entity. Any special registration of a business name specified in constituent documents the Civil Code of the Russian Federation does not imply a legal entity.
58.2. By virtue of paragraph 4 of Article 54, paragraph 1 of Article 1473 of the Civil Code of the Russian Federation, the right to a company name arises only from a legal entity that is commercial organization.
Names of non-profit organizations (Article 4 Federal Law dated January 12, 1996 No. 7-FZ “On Non-Profit Organizations”) are not a means of individualizing legal entities in the sense of the provisions of Part Four of the Civil Code of the Russian Federation; they are not subject to the legal protection established by paragraph 1 of Chapter 76 of the Code.
In view of this, the rules provided for in Article 1473 of the Civil Code of the Russian Federation, including the prohibitions contained in paragraph 4 of this article, on non-profit organizations do not apply.
The names of associations of legal entities that are not legal entities do not qualify as company names in the sense of the provisions of the Civil Code of the Russian Federation.
58.3. Words derived from the official name “Russian Federation” or “Russia”, in the sense of paragraph eight of paragraph 4 of Article 1473 of the Civil Code of the Russian Federation, should be understood as including the word “Russian” (and derivatives from it) both in Russian and in foreign languages in Russian transcription, but not the word “Russian” (and its derivatives).
58.4. In relation to subparagraph 1 of paragraph 4 of Article 1473 of the Civil Code of the Russian Federation, the corporate name of a legal entity cannot also include full or abbreviated names of interstate unions (for example: Commonwealth of Independent States, CIS).
58.5. The requirements for the trade names of credit institutions are determined both by Article 1473 of the Civil Code of the Russian Federation (the prohibitions established by paragraph 4 of this article also apply to them) and by Article 7 of the Federal Law “On Banks and Banking Activities”, which introduces additional requirements for the trade names of these organizations.
58.6. Disputes regarding brand names fall under the jurisdiction of arbitration courts.
59. According to paragraph 3 of Article 1474 of the Civil Code of the Russian Federation, it is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it, if these legal entities carry out similar activities and the company name of the second legal entity was included in a single State Register legal entities (hereinafter referred to as the Register) earlier than the corporate name of the first legal entity.
When applying this rule, courts must take into account: the exclusive right to the trade name of a legal entity that was included in the Register earlier than another one is subject to protection, regardless of which of the legal entities began the corresponding activity earlier.
60. Courts should keep in mind that, by virtue of paragraph 4 of Article 1474 of the Civil Code of the Russian Federation, the requirement to stop using a company name that is identical to the company name of the copyright holder or confusingly similar to it in relation to types of activities similar to the types of activities carried out by the copyright holder, and to compensate Damages caused to the copyright holder can only be claimed by the copyright holder. The body carrying out state registration of legal entities, on the basis of paragraph 5 of Article 1473 of the Code, is given the right to bring to court only a claim for compulsion to change the company name and only if the company name of the legal entity does not meet the requirements of paragraphs 3 or 4 of this article. The Code does not provide other persons with the right to demand from a legal entity to stop violating the provisions of paragraph 1 of Chapter 76 of the Civil Code of the Russian Federation.
61. When applying Article 1475 of the Civil Code of the Russian Federation, courts should take into account that it does not exclude the protection in the Russian Federation of the right to the trade name of foreign legal entities (Article 8 of the Paris Convention for the Protection of Industrial Property).
Trademark rights and service mark rights
62. By virtue of paragraph 1 of Article 1484 of the Civil Code of the Russian Federation, the exclusive right to use a trademark belongs to the person in whose name the corresponding trademark is registered (the copyright holder).
Consequently, the person in whose name the trademark is registered cannot be denied its protection (even if evidence of the illegality of registration of the trademark is presented to the court) until the granting of legal protection to such a trademark is declared invalid in the manner provided for in Article 1512 of the Civil Code of the Russian Federation , or termination of legal protection of the trademark in the manner established by Article 1514 of the Code.
At the same time, the court has the right to refuse a person to protect his right to a trademark on the basis of Article 10 of the Civil Code of the Russian Federation, if, according to the case materials, based on specific factual circumstances, actions for state registration of the corresponding trademark can be qualified as an abuse of right.

The choice of the name of the organization is limited not only by your imagination, but there are also a number of requirements that must be met. So, the company must have a full company name and has the right to have an abbreviated company name in Russian.

The full corporate name of the company in Russian must contain the full name of the company and a transcript of the organizational legal form. The corporate name of a company in Russian cannot contain other terms and abbreviations that reflect its organizational and legal form, including those borrowed from foreign languages.

The registration authority does not have the right to refuse registration of a new company if its name coincides with the name of an existing one. existing company. This conclusion is contained in the letter of the Federal Tax Service of Russia dated September 20, 2013 No. SA-4-7/16976.

An exhaustive list of grounds for refusal of registration is in paragraph 1 of Article 23 of the Federal Law of 08.08.01 No. 129-FZ. One of them is the inconsistency of the name with the requirements of the law (clause “g”, clause 1, article 23 of law No. 129-FZ). For example, you cannot use the names of foreign states (clause 4 of Article 1473 of the Civil Code of the Russian Federation). Or use the word “Russia” or “Russian” without permission from the Ministry of Justice. The inspection will refuse registration, and the judges will recognize this as legal (resolution of the FAS of the East Siberian District dated 03.21.13 No. A19-16267/2012).

PROHIBITIONS ON THE NAME OF THE COMPANY

• full or abbreviated official names of the Russian Federation, foreign states, as well as words derived from such names;
• full or abbreviated official names of federal bodies state power,
state authorities of the constituent entities of the Russian Federation and local governments;
• full or abbreviated names of international and intergovernmental organizations;
• full or abbreviated names of public associations;
  5) designations that contradict public interest, as well as the principles of humanity and morality.

In other cases there are no grounds for refusal. Let's say new company may take the name Samsung LLC. Formally, the Civil Code of the Russian Federation does not allow the use of the corporate name of another organization (clause 3 of Article 1474 of the Civil Code of the Russian Federation). But only its owner has the right to demand its replacement (Clause 4, Article 1474 of the Civil Code of the Russian Federation). And for this you need to go to court and win it. For example, you can prohibit the use of a similar name written lowercase letters instead of capital letters, - “Ellay” and “ELLAY. Or the same name, only with a different form of ownership - CJSC "OPTIMA" and LLC "OPTIMA" (resolutions of the Federal Antimonopoly Service of the Moscow District dated 05.08.13 No. A40-131172/11-19-244, dated 08.07.13 No. A40-101195/12 -27-927).

COINCIDENCE OF COMPANY NAMES

It is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it if these legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name of the first legal entity. faces.

Since registration authorities do not monitor the coincidence of company names, the problem of name coincidence is controlled by the applicants themselves. Most often, no one pays attention to the same company names, but it may also happen that the name of another company can be patented. As a result, you will have to change the name of the enterprise, as well as compensate the copyright holder for the losses caused.

A legal entity that has violated the exclusive right to the trade name of another person is obliged, at the request of the copyright holder, to stop using the trade name that is identical to the trade name of the copyright holder or confusingly similar to it in relation to types of activities similar to the types of activities carried out by the copyright holder, and to compensate the copyright holder for damages caused. .

To avoid conflicts, before registering a company, you should check the uniqueness of the name on the Federal Tax Service website www.nalog.ru in the section “State registration of taxpayers” > “Check yourself and your counterparty.” And if there is a coincidence, choose a different name. If someone is already using the company’s trade name, then they can demand a name change through the court.

Is it possible to register two LLCs with absolutely identical names and the same “legal” address in one tax office?

Having considered the issue, we came to the following conclusion:

Registration of legal entities with the same names and the same location address does not contradict the law.

Rationale for the conclusion:

In accordance with clause 13, clause 1, art. 1225, paragraph 1, art. 1473 of the Civil Code of the Russian Federation, the names of commercial organizations - trade names are intellectual property - a means of individualization and are protected by law. A company name is not subject to special registration, independent of the registration of a legal entity; the right to it arises from the moment it actually begins to be used (see, for example, resolution of the Federal Antimonopoly Service of the Central District dated 04/09/2008 N A35-3833/07-C6).

Within the meaning of paragraph 2 of Art. 1229 of the Civil Code of the Russian Federation, the exclusive right to intellectual property, including means of individualization, including a company name, can belong to only one person. In this regard, according to paragraph 3 of Art. 1474 of the Civil Code of the Russian Federation, it is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it, if these legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name name of the first legal entity.

At the same time, the only negative consequence violation of the exclusive right to a company name, by virtue of clause 4 of Art. 1474 of the Civil Code of the Russian Federation, is that a legal entity that has violated the specified paragraph 3 of Art. 1474 of the Civil Code of the Russian Federation, therefore, is obliged, at the request of the copyright holder, to stop using a company name that is identical to the company name of the copyright holder or confusingly similar to it in relation to types of activities similar to the types of activities carried out by the copyright holder, and to compensate the copyright holder for losses caused. Other persons have not been granted the right to demand from a legal entity to stop violating the provisions of paragraph 1 of Chapter 76 of the Civil Code of the Russian Federation (clause 60 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 26, 2009 N 5/29 “On some issues that arose in connection with the entry into force of part four of the Civil Code of the Russian Federation").

The above also applies to government bodies, that is, registration authorities cannot refuse to register a legal entity due to the coincidence of its name with the name of an already existing legal entity. The body carrying out state registration of legal entities, clause 5 of Art. 1473 of the Civil Code of the Russian Federation provides the right to bring a claim to court to force a change in the company name only if the company name of the legal entity does not meet the requirements of paragraphs. 3, 4 tbsp. 1473 of the Civil Code of the Russian Federation (requires the expression of a company name in Russian and prohibits including in it the names of public legal entities and their bodies, public organizations, designations that are contrary to public interests, as well as the principles of humanity and morality).

As for the location (in practice referred to as the “legal address”), according to paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person authorized to act on behalf of the legal entity without a power of attorney. In this case, the location of the legal entity is indicated in its constituent documents (clause 3 of Article 54 of the Civil Code of the Russian Federation). This information is entered into the Unified State Register of Legal Entities on the basis of documents submitted by the organization during state registration (Clause 4, Article 5 of the Federal Law of 08.08.2001 N 129-FZ “On State Registration of Legal Entities and individual entrepreneurs"(hereinafter referred to as Law 129-FZ)). The law also does not provide for any restrictions on the coincidence of the location of a legal entity with the location of a previously registered legal entity.

In connection with the above, it should be taken into account that, within the meaning of Art. 23 of Law N 129-FZ, refusal of state registration of a legal entity is allowed only in the cases specified in this article, other grounds for refusal of state registration of a newly created legal entity current legislation not provided. Let us note that clause "g" clause 1 of Art. 23 of Law No. 129-FZ provides for refusal of state registration of a legal entity due to non-compliance of the name of the legal entity with the requirements of federal law. However, within the meaning of the above rules, this concerns the contradiction of the brand name of pp. 3, 4 tbsp. 1473 Civil Code of the Russian Federation.

Accordingly, a refusal on the grounds of non-compliance of the submitted documents with the law, violation of the rights of other persons or doubts about the actual use of the specified location (see, for example, the decision of the Arbitration Court of the Chuvash Republic dated June 26, 2008 N A79-1718/2008, the decisions of the Seventeenth Arbitration Court of Appeal dated 10/06/2011 N 17AP-8960/11, FAS Moscow District dated 09/07/2011 N F05-8394/11, FAS Central District dated 09/28/2011 N F10-3254/11).

Limited liability companies are common in Russia, since this form of management entrepreneurial activity considered the most convenient for founders. It is distinguished by the small size of the authorized capital - it is 10,000 rubles (for all companies, excluding those engaged in financial transactions) and the fact that the individual participant bears financial liability within its share. But when opening an LLC, the applicant may encounter some difficulties. One of them is that the name of the organization must comply with the requirements of Russian legislation. You can find out about the standards by reading the article.

Requirements for an LLC name

The standards that must be adhered to are specified in the Civil Code of the Russian Federation and the Federal Law “On Limited Liability Companies” No. 14-FZ, adopted on February 8, 1998.

In these regulations it is stipulated that an LLC can have both a full and an abbreviated name in the state and foreign languages, while combining letters of different alphabets is prohibited. The law also allows companies to have 6 names at once. Moreover, each of them must be indicated in the LLC Charter. Subsequently, all of them will be entered into the unified state register of legal entities. After this, they can be used to promote your business (for example, in advertising).

The full name means the name of the enterprise itself along with the designation of the form of business activity without abbreviations, that is, “limited liability company.”

The abbreviated name is not required to be used, but the law allows the organization to enter it along with the full designation. It may be an abbreviation.

Besides, government bodies make it possible to use various mathematical notations or Roman numerals.

What names cannot be given?

To ensure that the Federal Tax Service does not refuse the applicant to register an LLC, you need to know which words are prohibited from being used in the name of the company. These include:

• The word “Russia” and any abbreviations derived from it, for example, “ros”. This group includes the words “Moscow”, “federal”;
• Full or abbreviated names of government entities (Example: Altai Territory), government bodies (Example: Ministry of Health), public associations;

• Names of organizations operating at the international level;
• Names of the subjects of the country, that is, cities, regions, etc.

But there are situations in which the words from the first paragraph are allowed to be used. This can be done in the following cases:

• A commercial organization has branches located in more than half of the constituent entities of the Federation, that is, there must be at least 43 branches in different regions of Russia;
• The company is a large taxpayer. A company becomes such if the amount of mandatory payments to the state is at least 1 billion rubles per year;
• LLC is the main manufacturer of the products it produces (at least 35% of the entire market for these goods);
• One of the investors is the Russian Federation (share in authorized capital must be at least 25%).

If one of these points is met, the company must submit a package of documents to the Ministry of Justice. These include:

• A statement indicating that the company wants to have a name that includes the word “Russia”;
• Protocol signed by general meeting LLC participants;
• Information confirming that the enterprise has the right to include such names in its corporate name.

After submitting your application civil service reviews the application within 1 month.

Is it possible to register an LLC with the same name?

In the third paragraph of Article 1474 Civil Code The Russian Federation “Exclusive right to a company name” states that enterprises supplying identical products to the market are prohibited from having the same name.

When considering an application, a thorough check is made to ensure the uniqueness of the company name. The process takes place on the official website of the Federal Tax Service.

If the company does not pass the inspection, then it is denied opening. In addition, it must pay losses to the company that received this name earlier.

Hello, I decided to open an LLC. If I use a company name that is already used by another company, will I be held responsible for this?

• Question: No. 1714 dated: 2015-03-26.

This issue is regulated by civil and antimonopoly legislation.

1) In accordance with paragraph 1 of Art. 1473 of the Civil Code of the Russian Federation, a legal entity that is a commercial organization acts in civil circulation under its corporate name, which is determined in its constituent documents and is included in the unified state register of legal entities upon state registration of the legal entity.

So, the company name is fixed in the constituent documents of the company and is included in the unified state register of legal entities.

According to Art. 1474 of the Civil Code of the Russian Federation, a legal entity has the exclusive right to use its company name as a means of individualization in any way that does not contradict the law (exclusive right to a company name), including by indicating it on signs, forms, invoices and other documentation, in announcements and advertising , on goods or their packaging, on the Internet.

Abbreviated company names, as well as company names in the languages ​​of the peoples of the Russian Federation and foreign languages, are protected by the exclusive right to a company name, subject to their inclusion in the unified state register of legal entities.

It is not permitted for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it if these legal entities carry out similar activities, and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name of the first legal entity.

A legal entity that has violated the above rules, at the request of the copyright holder, is obliged, at its own discretion, to stop using a company name that is identical to the company name of the copyright holder or confusingly similar to it in relation to types of activities similar to the types of activities carried out by the copyright holder, or to change its company name, and is also obliged to compensate the copyright holder for damages caused.

Thus, the Civil Code of the Russian Federation prohibits the use of a company name that was previously registered by another organization. Violation of this norm entails civil liability, which is expressed in a further ban on the use of this name, as well as compensation for damages.

This position is confirmed judicial practice. For example, the Limited Liability Company “Revda Hardware and Metallurgical Union” (hereinafter referred to as the plaintiff) appealed to the Arbitration Court Sverdlovsk region with a claim against Revdinsky Hardware and Metallurgical Union LLC (hereinafter referred to as the defendant) to prohibit the defendant from using the company name. The Arbitration Court of the Sverdlovsk Region, in its decision dated June 1, 2010 in case No. A60-11617/2010-C7, satisfied this requirement, prohibiting the defendant from using a similar company name, as well as collecting payment costs from him in favor of the plaintiff legal services and state duty. The Seventeenth Arbitration Court of Appeal dated August 17, 2010, in its Resolution No. 17AP-7422/2010-GK, left this decision unchanged.

2) In accordance with Part 2 of Art. 14 of the Federal Law of July 26, 2006 “On the Protection of Competition” No. 135-FZ (hereinafter referred to as the Federal Law “On the Protection of Competition”), unfair competition associated with the acquisition and use of the exclusive right to means of individualization of a legal entity, means of individualization of products, works is not allowed or services.

According to paragraph 9 of Art. 4 of the Federal Law “On Protection of Competition”, unfair competition is any actions of business entities (groups of persons) that are aimed at obtaining advantages in carrying out business activities, contradict the legislation of the Russian Federation, business customs, the requirements of integrity, reasonableness and fairness and have caused or may cause losses to other business entities - competitors have either caused or may harm their business reputation.

Thus, the Federal Law “On Protection of Competition” prohibits in any way the use of the exclusive rights of a legal entity (including the right to a company name) if this use violates the rights of competitors.

By virtue of paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of a legal entity is determined by the place of its state registration on the territory of the Russian Federation by indicating the name of the locality (municipal entity).

In accordance with clause 5.33 of GOST of the Russian Federation dated July 3, 2003 No. 535-st, economic activity means activities carried out in the course of production activities an individual entrepreneur or a legal entity, regardless of the form of ownership and whether it is commercial or non-commercial in nature.

From the analysis of the Federal Law of August 8, 2001 “On State Registration of Legal Entities and Individual Entrepreneurs” No. 129-FZ and the Resolution of the State Committee of the Russian Federation for Standardization and Metrology of November 6, 2001 No. 454-st, it follows that the types economic activity carried out by a legal entity are determined in accordance with All-Russian classifiers species economic activity OK 029-2001 (hereinafter - OKVED).

So, organizations are competitors if they are located within the same geographical boundaries and carry out the same types of activities, determined in accordance with OKVED.

According to Art. 8 of the “Convention for the Protection of Industrial Property” of March 20, 1883 (hereinafter referred to as the “Convention”), a trade name is protected in all countries without the requirement of filing an application or registration and regardless of whether it is part of a trademark.

In strength 1 tbsp. 10 of the Convention, in particular, all actions capable of causing confusion in any way with respect to the enterprise, products or industrial or trading activities competitor.

Consequently, the “Convention” prohibits the use of a company name that is similar to the company name of another legal entity if this use will cause confusion among third parties in any relationship with these organizations.

This position is confirmed by judicial practice. By virtue of clause 16 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 13, 2007 No. 122 “Review of the practice of consideration by arbitration courts of cases related to the application of legislation on intellectual property” (hereinafter referred to as “Information Letter of the Supreme Arbitration Court of the Russian Federation No. 122”), it is unlawful to use not only identical, but also similar brand name by third parties.

In accordance with paragraph 17 of the “Information Letter of the Supreme Arbitration Court of the Russian Federation No. 122”, the difference in the organizational and legal form as part of the company name does not in itself indicate the absence of a violation of the right to the company name.

This position is confirmed by judicial practice. The Eighteenth Arbitration Court of Appeal in its Resolution No. 8AP-6348/2014 in case No. A47-15961/2012 indicated that the difference between the organizational and legal form of one organization (limited liability company) from the organizational and legal form of another organization (closed Joint-Stock Company) is not a basis that releases the company from liability.

So, based on the analysis of the norms of antimonopoly legislation, it follows that an organization will violate the exclusive right to the trade name of another legal entity in the presence of the following circumstances:

1. This company name completely or partially coincides with the company name of another company to such an extent that it can mislead third parties;
2. Organizations operate within one locality (municipal entity);
3. Organizations carry out similar activities (coinciding with OKVED);

It should be noted that the presence of all of the above circumstances is recognized as a violation of antimonopoly legislation. At the same time, the difference in the organizational and legal form of legal entities is not a basis excluding prosecution.

3) This violation of antimonopoly legislation is an administrative offense and entails administrative liability.

In accordance with Part 1 of Art. 14. 33 of the Code of Administrative Offenses, the implementation of unfair competition - entails the imposition of an administrative fine on legal entities - from one hundred thousand to five hundred thousand rubles.

This position is confirmed by judicial practice.

The Sovetsky District Court of Novosibirsk, in its decision dated April 1, 2014 in case No. 12-53/14, upheld the decision of the deputy head of the Federal Antimonopoly Service for Novosibirsk region dated December 4, 2013 on the involvement of Petrovich E.A. to administrative liability under Part 1 of Art. 14.33 Code of Administrative Offenses of the Russian Federation. In support of its decision, the Sovetsky District Court of Novosibirsk indicated that the violation charged to her was expressed in the acquisition and use of the trade name LLC “1”, similar to the trade name of another legal entity LLC MC “2”, in relation to types of activities similar to the types of activities carried out by the latter in one territory.

The Eighteenth Arbitration Court of Appeal, in its Resolution No. 8AP-6348/2014 in case No. A47-15961/2012, held the Uralrentgen company administratively liable for violation by this company of Art. 14.33 Code of Administrative Offenses of the Russian Federation. In support of its decision, the court indicated that in the conditions of the use by the violator in his own name of a main element that is confusingly similar to the main element of a previously registered means of individualization of a third party, and the implementation by these persons of homogeneous and similar types of economic activities within the same territorial entity, the applicant’s actions cannot be recognized as meeting the requirements of integrity, reasonableness and fairness, and contradict the provisions of Part 2 of Art. 14 of the Federal Law “On Protection of Competition”, since such actions were committed with the aim of obtaining an unreasonable advantage in carrying out business activities.

By virtue of Art. 1253 of the Civil Code of the Russian Federation, if a legal entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity and to means of individualization, the court in accordance with paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, if such a legal entity is guilty of violating exclusive rights, it may decide to liquidate it at the request of the prosecutor.

Thus, if a legal entity repeatedly violates the rights of competitors to a company name, then it can be liquidated in court

To receive a more detailed consultation, we recommend that you contact the reception office of lawyer Sergei Sergeevich Ivlev at the address: Orenburg, st. Shevchenko 20B, office 414, tel.: 8-912-84-84-805.

Attention! The information provided in the article is current at the time of publication.