Comment to article 199. Illegal use of the trademark of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Illegal use of someone else's trademark, service mark, trade name, appellation of origin or similar designations for similar goods or services, if this act has been committed repeatedly or caused major damage, —      

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months, or by community service for a period of one hundred eighty to two hundred forty hours, or by arrest for up to six months, or correctional labor for up to two years.      

2. Illegal use of a warning label in relation to a trademark or an appellation of origin not registered in the Republic of Kazakhstan, if this act has been committed repeatedly or caused major damage., —      

is punishable by a fine in the amount of one hundred to two hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to two months, or by community service for a period of one hundred and twenty to one hundred and eighty hours, or by arrest for up to three months, or correctional labor for up to one year.      

The public danger of illegal use of a trademark is expressed in the fact that as a result of its commission, significant damage is caused to the economy of our state.      

The object of the crime is public relations arising in connection with the registration, legal protection and use of trademarks, service marks and names of places of origin of goods.      The subject of a crime under Part 1 of Article 199 of the Criminal Code of the Republic of Kazakhstan is a trademark, service mark, appellation of origin or similar designations for similar goods.      

The subject of the crime under Part 2 of Article 199 of the Criminal Code of the Republic of Kazakhstan is a warning label.      

A trademark is a necessary element of the language of the market. Since the total cost of the product for the buyer consists of its price plus the cost of the buyer's search expenses, the benefits of the company are unambiguous.: the higher the commercial reputation that the mark represents, and the greater the number of buyers whose trademark evokes positive associations, the more successful the firm is, which can sell more goods at a higher price, and the better for the consumer, who can save money by reducing the cost of searching for information about the product.      

Under the trademark and service mark, according to The Law of the Republic of Kazakhstan "On Trademarks, Service Marks and Appellations of Origin" dated July 26, 1999 (as amended dated 11/22/2005) and the Law of the Republic of Kazakhstan "On Accession to the Trademark Laws Agreement" dated February 4, 2002, should be understood as a registered verbal, figurative, three-dimensional or other designation used for goods and services of some business entities from similar goods and services of other business entities (legal entities or individuals).      

A "collective trademark" is a trademark of a union, business association, concern, or other association intended to designate goods produced or sold by them that have common qualitative or other characteristics.      

A service mark is a designation registered in accordance with the above—mentioned laws or protected without registration by virtue of international treaties to which the Republic of Kazakhstan participates, which serves to distinguish the services of some legal entities or individuals from similar services of other legal entities or individuals.    

An appellation of origin is the name of a geographical feature used to designate a product whose special properties are exclusively or mainly related to its place of production (natural conditions or human factors, or natural conditions and human factors at the same time).      

A trademark is registered with one legal entity that has the exclusive right to use it and serves as a quality guarantee and advertisement. The exclusive right of the owner to the trademark is certified by a certificate.      

Legal protection of the place of origin of goods arises on the basis of its registration in accordance with the procedure established by law by one or more subjects of economic activity. The right to use the same name is not exclusive and therefore can be assigned to any persons producing a similar product in that area. In addition, unlike a trademark, the right to use an appellation of origin is perpetual and cannot be licensed to other persons.      

On the objective side, the crime provided for in Part 1 of Article 199 of the Criminal Code of the Republic of Kazakhstan is the illegal (without the consent of the owner) use of someone else's trademark, appellation of origin or similar designations for similar goods. The act provided for in Part 2 of Article 199 of the Criminal Code of the Republic of Kazakhstan consists in the illegal use of a warning label in relation to a trademark or an appellation of origin unregistered in the Republic of Kazakhstan.    

The use of a trademark is considered to be its marking on the goods for which the trademark is registered and on the packaging by the trademark owner or a person to whom such a right is granted on the basis of a license agreement.      The use of an appellation of origin is considered to be its use on goods, packages, advertising, forms, invoices, prospectuses or other documentation related to the introduction of goods into economic circulation.      The illegal use of a trademark or similar designations for similar goods should be understood as its operation without the permission of the trademark owner.      

The use of an appellation of origin or similar designations will be illegal in the absence of a certificate, even if the original place of origin of the goods is indicated or the name is used in translation or in combination with the words "imitation", "genus, type", etc., if a similar designation is used that may mislead consumers about the place of origin and special properties of the product.      

The warning label may not be used in relation to a trademark or an appellation of origin that is not registered in the Republic of Kazakhstan.      

According to parts 1 and 2 of Article 199 of the Criminal Code of the Republic of Kazakhstan, a crime is considered completed from the moment of repeated (two or more) commission of these actions, or from the moment of causing major damage, the concept of which is given in the note to Article 189 of the Criminal Code of the Republic of Kazakhstan.      

The subject of the crime is a general, sane individual who has reached the age of 16 at the time of the commission of the crime.      

The subjective side of the crime being analyzed, depending on the design of the composition under consideration, can be in the form of both direct and indirect intent. When used repeatedly, direct intent is seen, and when major damage is caused, both direct and indirect intent is seen.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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