The Cassation Court for Civil Cases has reviewed a dispute over the recovery of 39 million tenge for the sale of welding electrodes bearing someone else's trademark, the website infohub.kz reports.
A company holding the right to use the trademarks sought to recover 39 million tenge in material damages from a Kazakh citizen. The claim stemmed from the sale of counterfeit welding electrodes bearing an illegally used trademark.
"The fact of illegal use of the trademark was established in the framework of a criminal case that was terminated due to an amnesty. During the investigation, products totaling 8,900 packages were seized, the value of which was determined by an expert opinion," the statement said.
The court of first instance refused to award the company the money. The appellate instance upheld that decision.
The plaintiff's representative filed a cassation appeal and asked that the earlier court rulings be overturned. He insisted that the courts had failed to take into account the significance of the investigative body's ruling, which established the fact of the offense, the defendant's guilt and the value of the seized products.
"The Cassation Court disagreed with the arguments of the appeal, noting that the subject of the claim was compensation for material damage, not compensation for infringement of the exclusive right to a trademark. The expert opinion submitted to the court determined the value of the seized products, but did not confirm the amount of losses actually incurred by the plaintiff or lost profits. The plaintiff also did not file a claim for the payment of compensation provided for by law instead of damages," the court added.
Thus, establishing the fact of illegal use of the trademark did not relieve the plaintiff of the obligation to prove the amount of the claimed damage.
As a result, the Cassation Court left the rulings of the lower instances unchanged and dismissed the company's appeal.