home Business Does not apply to advertising. What does not apply to advertising. Permissible dimensions of a sign on the facade of a building according to the law

Does not apply to advertising. What does not apply to advertising. Permissible dimensions of a sign on the facade of a building according to the law

The participation of legal entities and individual entrepreneurs in civil circulation presupposes their individualization.

A legal entity acts in civil circulation under its corporate name, which is determined in the constituent documents and must contain an indication of its organizational and legal form and the name itself (clause 1 of Article 54; hereinafter referred to as the Civil Code of the Russian Federation). Citizen registered as individual entrepreneur, carries out business activities under his own name, including the surname and first name, as well as patronymic, unless otherwise follows from the law or national custom (), indicating information about his state registration and the name of the body that registered it. The corporate name of a legal entity is indicated on signs, forms, invoices and other documentation, in announcements and advertising, on goods or their packaging, and may also be included in a trademark (Articles 1474 and 1476 of the Civil Code of the Russian Federation). To individualize trade, industrial and other enterprises, goods, works, services, participants in civil circulation may use commercial designations, trademarks and service marks, including by indicating them on signs, forms, in announcements and advertising, on goods or their packaging, when performing work and providing services (Articles 1539 and 1484 of the Civil Code of the Russian Federation). True, a commercial designation can be indicated, in particular, on a sign or in advertising only if it has sufficient distinctive features and its use by the copyright holder to individualize his enterprise is known within a certain territory. In accordance with paragraph 1 of Article 9 of the Law Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the Protection of Consumer Rights), the manufacturer (performer, seller) is obliged to bring to the attention of the consumer the brand name (name) of his organization, its location (address) and regime her work. The seller (performer) places the specified information on the sign.

A similar provision is enshrined in paragraph 2 of the Rules for consumer services in the Russian Federation, approved by Decree of the Government of the Russian Federation of August 15, 1997 N 1025, paragraph 10 of the Rules for the sale of certain types of goods approved by Decree of the Government of the Russian Federation of January 19, 1998 N 55, paragraph 5 of the Rules provision of sales services tourism product, approved by Decree of the Government of the Russian Federation dated July 18, 2007 N 452, paragraph 11 of the Rules for the provision of services Catering , approved by Decree of the Government of the Russian Federation dated August 15, 1997 N 1036, paragraph 3 of the Rules for the provision of parking services, approved by Decree of the Government of the Russian Federation dated November 17, 2001 N 795, paragraph 3 of the Rules for the provision of hotel services in the Russian Federation, approved by Decree of the Government of the Russian Federation dated 25.04. 1997 N 490, paragraph 3.3 of the Rules for the dispensing (sale) of medicines in pharmacies, approved by Order of the Ministry of Health of the Russian Federation dated March 4, 2003 N 80 (hereinafter referred to as the Rules for the dispensing (sale) of medicines). In some cases, by-laws oblige organizations and individual entrepreneurs to indicate additional information on the sign. For example, public catering organizations are required to indicate on the sign the type and class of the establishment, and pharmacy organizations - the type: “Pharmacy”, “Pharmacy Point”, “Pharmacy Kiosk”, “Pharmacy Store”, the operating hours of the organization, as well as the addresses and telephone numbers of nearby and duty pharmacies. A pharmacy organization providing medicinal care at night must have a lighted sign with information about work at night, indicating hours of operation, and a bell for a visitor to call an employee of the pharmacy organization. The current legislation does not contain the concept of “signboard”. A sign usually means a structure in a three-dimensional or flat design, located, as a rule, on the facade of a building, in front of the entrance to the occupied premises, which informs about the organization located inside. The purpose of information of this nature is to notify an indefinite number of persons about the actual location of a legal entity and (or) designation of the place of entry into the premises occupied by it. Only the requirements regarding signage of pharmacy organizations have been most fully regulated. The rules for the dispensing (sale) of medicines stipulate that the name of the type of pharmacy organization must be written in a font the size of which allows the inscription to be clearly distinguished at any time of the day from a distance of at least 25 meters. When a pharmacy is located inside a building, the sign must be on the outer wall of the building. The only indication in the current legislation on the type of sign - a plate - is contained in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation (hereinafter - the SAC RF) dated December 25, 1998 N 37 "Review of the practice of resolving disputes related to the application of legislation on advertising" (hereinafter - the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 25. 12.1998 N 37), which explains that the placement of a street sign (plate) with the name of a legal entity as an indicator of its location or designation of the entrance to an occupied premises, building or territory is a common practice and corresponds to business customs established in Russia. In addition to informing the public about their location in a particular building, legal entities and individual entrepreneurs can place advertising on the facades of buildings to promote their goods and services on the market. In accordance with Article 3 Federal Law dated March 13, 2006 N 38-FZ “On Advertising” (hereinafter referred to as the Law on Advertising) advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite number of persons and aimed at attracting attention to the object of advertising, creating or maintaining interest in it and promoting it on the market. According to subparagraphs 2 and 5 of paragraph 2 of Article 2 of the Advertising Law, its effect does not apply to information, the disclosure or distribution or delivery to the consumer of which is mandatory in accordance with federal law, as well as to signs and indicators that do not contain information of an advertising nature. In paragraph 18 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 1998 N 37, it is explained that the indication by a legal entity of its name (company name) on a sign at its location is not advertising. Within the meaning of Article 2 of the Law on Advertising, advertising is understood as information disseminated solely for the purpose of generating and maintaining interest in a legal entity or individual, its products, ideas and undertakings. The indication by a legal entity of its name on a sign (plate) at its location serves other purposes and cannot be considered as advertising. Information, the dissemination of which in form and content is obligatory for a legal entity on the basis of law or business custom, does not apply to advertising information, regardless of the manner of its execution on the corresponding sign. Taking into account the above, the Advertising Law does not regulate issues related to the content of signs (plates) in terms of mandatory information. From the statistical indicators of the work of the Federal Arbitration Court of the North-Western District (hereinafter - FAS NWO) it is clear that the number of disputes related to the placement of signs and advertising structures on the facades and roofs of buildings is small. However, the study of judicial and arbitration practice shows that when applying the rules related to the distinction between the concepts of “advertising” and “sign”, many questions arise. This Review aims to examine some of them. In practice, the question arises: in what case is a street sign of an organization considered advertising, and in what case - informational? What are the delimitation criteria? An analysis of court cases allows us to see that the issue of assessing the content of volumetric-spatial structures placed on the roofs and facades of buildings denoting commercial objects as advertising or signs is decided by the court, taking into account the specific circumstances of the case and business customs. The courts of the first and appellate instances found that on the facades of the buildings there were volumetric-spatial structures in the form of light boxes with a graphic image and the inscriptions “oGorod”, “people’s restaurant”, “menu of the people’s restaurant” and “Golden Key Coffee House”, and came to the conclusion that structures with the inscriptions “oGorod”, “people’s restaurant” and “Golden Key Coffee House” are signs to which the requirements of advertising legislation do not apply, since they are located directly at the entrance to non-residential premises for the purpose of informing about the actual location of the catering facility and designating the entry point to this premises. At the same time, the courts recognized the advertising design with the inscription “people's restaurant menu”, since, taking into account the location (outside the hall of a public catering establishment), it is intended to maintain and generate interest of an indefinite number of people in the fast food enterprise, as well as in the services offered in order to promote them On the market . The company, which is the owner of the extension and non-residential premises in the building on which the structures “Golden Key”, “Shopping and Entertainment Complex”, “Pinocchio Restaurant”, “Pizzeria” are located; two light boxes with graphic images, roof installations in the form of panel brackets “people's restaurant”, “oGorod”, “Key”, “Bowling”; wall panels with information "Business Center", "OOO" BP "Vologda Dawns" room. 1", "tourist company "Julia Tour" room. 2", "Eliant Media LLC" room. 4", "hair salon room. 6", "LLC "Firm "MKM" room 7", "LLC "Globus" room 8", "LLC Legal Center "Pravozaschita" room 1", "stretch ceiling salon room 9", "LLC "Success" "room 10", "solarium room 12", "courier service "Inform-courier" room 13", "OOO "Variant" room 14", "Perspective room 5, 20", "student center "Diplomgold" "office no. 1"; double-sided panel-brackets with light boxes with information "Beer bar, restaurant "Eurobar", "EuroBeer, restaurant EuroBeer", "Sberbank of Russia, servicing individuals, deposit transactions, ATM 24, payment for services", "Bank of Moscow, ATM 24 hours"; firewall panel with information "COURSE AUTO cars sale, service, warranty, Gagarina, 87, 500-505"; three-dimensional structures in the form of light boxes with information "Network of showrooms CEILING! Stretch ceilings, Pervomaiskaya, 31, Leningradskaya, 85, 2nd floor, 707-878, 502-466", "Solarium, 2nd floor, office. 12", "Hairdressing salon "Agatha" 2nd floor", "MKM firm, windows, loggias, PVC doors, t. 533-226, 2nd floor, office. 7", "Perspective, creation today - prospect of tomorrow, 52-30-10", "Svyaznoy", appealed the order of the urban planning department to dismantle them. The courts of the first and appellate instances found that most of the structures are located directly at the entrance to non-residential premises with for the purpose of informing about their actual location and marking the entry point to these premises; a firewall panel with the information “KURS AUTO cars sale, service, warranty, Gagarina, 87, 500-505” is placed not on the facade of the extension to the apartment building, but on the supporting structure of it. apartment building, which belongs to the common property of the owners of the premises of this building, and volumetric-spatial structures in the form of light boxes with the information “Network of salons Ceiling! Stretch ceilings, Pervomaiskaya, 31, Leningradskaya, 85, 2nd floor, 707-878, 502-466", "Solarium, 2nd floor, office. 12", "Hairdressing salon "Agatha" 2nd floor", "MKM company, windows, loggias, PVC doors, etc. 533-226, 2nd floor, office. 7", "Perspective, creation today - prospect of tomorrow, 52-30-10" were placed without the consent of the society by other persons, who are obliged to dismantle these structures in accordance with the Procedure for the installation and operation of advertising structures and means of outdoor information on the territory of the municipality "City of Vologda". Taking into account the above, the courts satisfied the demands made by the company. The cassation court agreed with the conclusions of the courts of the first and appellate instances and left the judicial acts in the case unchanged. (Resolutions of the Federal Antimonopoly Service of the North-West District dated May 24, 2011 in cases No. A13-8503/2010 and A13-8505/2010)(Resolution of the Federal Antimonopoly Service NWZ dated May 24, 2011 in case No. A13-7460/2010) . In another case, an order from the city department to eliminate violations of advertising legislation was challenged. By the decision of the court of first instance, the stated requirements were satisfied. By the decision of the court of appeal, the court's decision was canceled and the stated claims were denied. When considering the case, the courts found that the company was renting a non-residential one-story building for use as a banking premises; on the facade of this building the company installed a structure in the form of light letters with the inscription “Northern Credit”. Satisfying the stated demands of the company, the court of first instance indicated that the structure in the form of three-dimensional letters “Northern Credit”, located on the facade of the building in which the bank branch carrying out banking operations is actually located, and corresponding to the corporate name of the company, is a sign designed to inform citizens about location of the organization. The Court of Appeal came to the conclusion that the controversial structure is an advertisement, since it does not contain information about the location and operating hours of the company, its dimensions exceed those established by the Placement Rules and information in the city of Vologda, and at the entrance to the building there is a sign that meets the requirements of Article 9 of the Law on the Protection of Consumer Rights. The cassation court recognized the conclusions of the appellate court as erroneous, pointing out that the Law on the Protection of Consumer Rights does not contain requirements for the number of signs, the placement of which is mandatory for a legal entity, and the failure to indicate on the sign information about the location and operating hours in itself cannot indicate that the disputed object is an advertisement. In contrast to advertising, which, within the meaning of Article 3 of the Law on Advertising, means information disseminated solely to create and maintain interest in a legal or individual person, its goods, ideas and endeavors, the legal entity’s indication of its name on a sign (plate) at its location serves other purposes and cannot be considered advertising (Resolution of the Federal Antimonopoly Service of the Northern Territory of January 18, 2010 in case No. A13-8181/2009). What should the sign look like? Does its location on the building matter? Current legislation does not regulate this issue. When assessing structures for classification as signs or advertising, courts sometimes take into account their location. For example, advertising was recognized as a structure that was erected next to the hotel and contains information about it: telephone numbers, proposed cost of living, data on the availability of a restaurant (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 16, 2011 in case No. A32-18023/2010). Indeed, the law does not regulate the number of signs, their size, color, font, but do not forget why organizations and individual entrepreneurs are required to place signs. Consumers should not be misled; they should receive information about the person selling goods or providing services in an accessible and clear manner. It seems that this is possible provided that all the information provided for in paragraph 1 of Article 9 of the Law on the Protection of Consumer Rights is placed on one sign. In this case, designs containing information not listed in the said rule of law may be recognized as advertising. It is no coincidence that the legislator obliges organizations and individual entrepreneurs to post information that allows them to be identified in an accessible and visible place - on a sign, and places this provision in the Law on the Protection of Consumer Rights. In case of disputes and conflict situations consumers need to know who to contact. To make claims, it is necessary to know the company name of the person, and not the commercial designation (brand) under which it produces goods or provides services. In market conditions, the names of products, stores, restaurants, beauty salons, clinics, etc. are often known and familiar to us. have nothing to do with the brand names of their owners. Thanks to advertising, consumers are more likely to know brands than the business names of the individuals who own them. A sign must convey factual information, while advertising is designed to attract the attention of an indefinite number of people to a product or service. On the other hand, in many countries, including ours, since ancient times it has been customary to place structures with the names of shops, restaurants, etc. above the entrance to these establishments. With the development of crafts and the emergence of cities, the first signs appeared, which artisans and merchants placed above the entrance to indicate their workshops, shops, taverns, etc. Moreover, initially these were not inscriptions, but drawn images, since there were few literate people who could read the sign. It turns out that historically the placement of a street sign with the name of the establishment as an indicator indicating the location of the entrance to the occupied premises or building is a common practice and custom of business. The lack of clear legislative regulation that makes it possible to distinguish a sign from advertising causes many difficulties in practice and largely determines the different interpretations of these concepts by the courts and, as a consequence, the lack of unity in judicial practice on this issue. In one case, a sign is understood as a structure containing strictly defined information: the company name, address and operating hours of the organization, in the other - any sign placed directly at the entrance to a non-residential premises for the purpose of informing about the actual location of the organization and indicating the point of entry into this premises. For example, a structure with the name of a hairdressing salon placed on the facade of a building was considered advertising. (Resolution of the Federal Antimonopoly Service NWZ dated December 25, 2009 in case No. A56-53397/2008). The court considered the advertisement of the "Berloni" design (at foreign language) on the facade and "Furniture center "Aladdin" on the roof of the building, since they are not the name of the defendant - an individual entrepreneur (Resolution of the Federal Antimonopoly Service of the Volga District dated October 31, 2002 in case No. A65-5731/2002-SG3-12). A roof structure with the word “Svyaznoy” placed above the entrance to the trade pavilion, where the company (open joint-stock company Svyaznoy Yug) rents premises for a communications salon, was also recognized as advertising. The courts indicated that this design is not a sign and is intended to create and maintain the interest of an indefinite circle of people in the company and its goods (services), and the information contained on the design about a commercial designation, a trademark is the legislator by virtue of Article 2 of the Law on Advertising, among other things refers to advertising (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 04/08/2010 in case No. A53-4954/2009). But there is another opinion. Thus, the FAS of the Far Eastern District did not recognize the design with the information “New Vasyuki SD Market Network” and “New Vasyuki SD Market Network. Games. Music. Movies. Programs. Tel. 301-500” as advertising, pointing out that they were located at the place of implementation by a legal entity of its activity, the commercial designation, as well as the profile of the organization’s activities and the type of goods sold, services provided do not fall under the concept of advertising, while information associated with a certain product by the consumer should be considered as advertising of this product (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated May 17, 2011 N F03-1429/2011). The Federal Antimonopoly Service of the Ural District agreed with the conclusions of the court of appeal that the volumetric structure with the name placed by the official dealer of the Hyundai Motor CIS company trademark HYUNDAI on the facade of the building is not advertising, since in this particular case it is not intended to attract the attention of an indefinite circle of people to legal entity and its goods, but only informs about the location of the organization that sells HYUNDAI goods. However, he recognized as erroneous the conclusions of the appellate court that the free-standing volumetric-spatial structures located on the right side of the car dealership building, with the words “Car Showroom”, “Service”, “Spare Parts”, “Parking for Customers” with an image of an arrow before each word, on which there is a HYUNDAI logo and a characteristic sign in the form of a curved Latin letter H, placed on the territory of a car sales center, are informational design and are not capable of creating a consumer’s preferential interest in purchasing goods under the HYUNDAI brand, since the specified trademark and brand name are not located on the building of a car sales center (car showroom). This information, according to the cassation court, falls under the signs of advertising (Resolution of the Federal Antimonopoly Service of the Ural District dated November 1, 2010 N F09-8948/10-S1) . Paragraph 1 of Article 9 of the Law on the Protection of Consumer Rights indicates what information must be placed on the sign without fail: the company name (name) of the organization, its location (address) and its operating hours. The law says nothing about placing a trademark or commercial designation on a sign instead of a company name. Articles 1539 and 1484 of the Civil Code of the Russian Federation allow for the possibility of indicating commercial designations on signs (provided that their use by the copyright holder to individualize his enterprise is known within a certain territory), trademarks and service marks, however, taking into account the provisions of paragraph 1 of Article 9 of the Law on Protection consumer rights, these designations and signs may be placed in addition to mandatory information, but not instead of it. It should be taken into account that the law also provides for the possibility of using commercial designations and trademarks for advertising purposes. An analysis of judicial and arbitration practice shows that courts differently evaluate the placement of trademarks and commercial designations as advertising or signage. On the one hand, it seems that these designations should be recognized as advertising based on the purpose for which they are used - to individualize trade, industrial and other enterprises, goods, works, services, that is, ultimately - to promote goods and services on the market . On the other hand, these designations help the consumer find the entrance to the store, restaurant, etc. he needs, and indicate the location of this object. In this case, the posted designation may coincide with the name of the legal entity, but may not contain an indication of its organizational and legal form. Formally, due to the lack of indication of the organizational and legal form, the legal requirement for the sign is not met. But it’s difficult to recognize it as advertising. Therefore, in a number of cases, courts recognize such structures as signs. The Federal Antimonopoly Service of the West Siberian District overturned the judicial acts of the courts of first and appellate instances, which recognized the advertising placed by the brewing company on the roof of the building and flagpoles of the words “Baltika” as aimed not at informing consumers about the brand name of the manufacturer and its location, but at attracting the attention of an indefinite circle persons to this legal entity and advertising its trademark. The cassation court pointed out that trademarks that act as the name of an establishment and individualize organizations at their location cannot be recognized as advertising. Such information may be placed on a sign and sign and is not subject to the requirements of the Advertising Law (Resolution of the Federal Antimonopoly Service of the West Siberian District dated July 30, 2009 N F04-4507/2009(11813-A45-43)). The Federal Antimonopoly Service of the Central District noted that the design with the words “Founded in 1841 SBERBANK OF RUSSIA”, which coincides with the trademark and is consistent with the abbreviated corporate name of the bank, is not advertising. The indication by a legal entity of its name, regardless of the manner of its execution, on a sign (plate) at the location pursues other purposes and cannot be considered as advertising of goods, and the absence on the sign of information about the location of the applicant and an indication of the legal form of the applicant cannot entail recognition of advertising design (Resolution of the Federal Antimonopoly Service of the Central District dated April 15, 2011 in case No. A36-3657/2010). At the same time, there is an opposite opinion. The FAS of the Volga-Vyatka District did not recognize the sign design with the words "BIOPHARM PHARMACY BIOPHARM" and "BIOPHARM OPTICS BIOPHARM", indicating that the information located on the structures is addressed to an indefinite circle of people and is aimed at attracting attention, creating or maintaining interest in open joint stock company"Biopharm" and the products it sells, contributes to its promotion on the market, that is, it has all the signs of advertising. The court also pointed out that, by virtue of clause 3.3 of the Rules for the dispensing (sale) of medicines in pharmacies, a pharmacy organization must have a sign indicating the type of organization, legal form and form of ownership, company name of the organization, location (in accordance with the constituent documents ), as well as the organization’s operating hours, addresses and telephone numbers of nearby and on-duty pharmacies (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 20, 2008 in case No. A82-3076/2008-27). Sometimes structures are placed on the facades of buildings indicating the profile of the services provided, the type of activity (salon, store, etc.). The question of the nature of these structures is debatable. On the one hand, it seems that such designs cannot be considered as advertising, since they have generic characteristics and are not aimed at attracting attention to a specific object (establishment, commercial designation, brand), creating or maintaining interest in it and promoting it on the market (Resolution of the Federal Antimonopoly Service of the Northern Territory of March 2, 2011 in case No. A56-20916/2010). Indeed, there are many shops and salons, but we go to certain places, including thanks to advertising, which has strengthened a certain image in our minds. Advertising is information that is associated with a specific place, product, service, or manufacturer. By virtue of paragraph 2 of Article 3 of the Law on Advertising, the object of advertising is a product, means of individualization of a legal entity and (or) product, manufacturer or seller of goods, results of intellectual activity or an event (including a sports competition, concert, competition, festival, based on risk games, bets), to attract attention to which advertising is aimed. From this definition it follows that it is not the activity itself that is advertised, but a specific seller, manufacturer and means of individualization. At the same time, the question arises: can a structure indicating the type of activity be recognized as a sign? The Law on the Protection of Consumer Rights does not include among the mandatory requirements to indicate the type of activity on the sign, therefore, strictly formally, such structures are not signs. However, it is also difficult to recognize them as advertising for the reasons stated above. But there is another point of view, whose representatives believe that the definition of a product contained in the Advertising Law (a product of activity (including work, service) intended for sale, exchange or other introduction into circulation) gives reason to believe that the indication of the genus activity (hair salon, store, etc.) is aimed at attracting attention to an establishment located in a specific location, creating and maintaining interest in it, and therefore is advertising. The FAS of the Volga-Vyatka District did not recognize as a sign the design “real estate agency” containing a list of types of activities (all transactions with real estate) and contact numbers, indicating that this information goes beyond the requirements of Article 9 of the Law on the Protection of Consumer Rights, since they indicate the type and volume of services provided, are intended to generate and maintain interest in the services provided by the entrepreneur, and contain contact numbers (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 22, 2007 in case No. A11-12907/2006-K2-22/646). At the same time, the Federal Antimonopoly Service of the West Siberian District declared void the agreement for the placement of outdoor advertising concluded between the company and the department of property relations, since the constructions “Cinema “Cosmos”, “Roskino”, “Cafe”, “Box Office” are not advertising (Resolution of the Federal Antimonopoly Service of the West Siberian District dated June 17, 2010 in case No. A46-18247/2009). As the study shows judicial practice, when deciding whether a design containing a commercial designation or an indication of the type of activity (profile) of an organization is an advertisement or a sign, the courts in a number of cases take into account the position of the Federal Antimonopoly Service (hereinafter referred to as the FAS Russia), expressed in a letter dated July 23. 2009 N ATs/24234 "On the distinction between the concepts of advertising and signboard." This letter states that “the placement at the place of the organization’s activities of a commercial designation used by a legal entity to identify the place of its activities, as well as the profile of the organization’s activities and the type of goods sold, services provided, in the opinion of FAS Russia specialists, can be recognized as a business custom turnover. Taking into account the above, a commercial designation placed at the place where a legal entity carries out its activities, as well as the profile of the organization’s activities and the type of goods sold and services provided, for example, “Seventh Continent Department Store”, “digital equipment store “Ion”, do not fall under the concept of advertising. , "Italian furniture", "Cafe "Ataman", "Crimean wines". However, it is worth noting that this document has not been published, and the clarifications contained in it are given on a specific request and are not of a normative nature. Therefore, it should be considered only as the opinion of the antimonopoly authority, and not as a regulatory legal act adopted within the framework of the powers granted to the FAS Russia. The unclear definition of the content of the concept of “sign” in the current legislation gave rise to the question of distinguishing between the concepts of “sign” and “advertising”. Due to the lack of proper legal regulation the order of placement and form of signboards when considering disputes regarding applications to invalidate orders to eliminate violations of the requirements of advertising legislation, courts evaluate volumetric-spatial structures placed on the roofs and facades of buildings as advertising or signs, depending on the specific circumstances of the case. The need to resolve the issue of the presence of signs of advertising in information, taking into account the specific circumstances of the case, is indicated in paragraph 15 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 25, 1998 N 37.

Shchelkunova T.S., Advisor to the Deputy Chairman of the Federal Arbitration Court of the North-Western District.

Tell me, is the name of the store an advertisement? Can the name of a store be considered an advertisement?

Perhaps the name is meant as a sign?
The current legislation does not contain the concept of “signboard”. The only indication of the type of sign - a plate - is contained in the information letter of the Supreme Arbitration Court of the Russian Federation dated December 25, 1998 N 37, which explains that the placement of a street sign... For it to be a sign and not an advertisement, it must comply with the requirements of Art. 9 of the Law of the Russian Federation “OZPP” i.e. :
1) name of the organization,
2) its location,
3) operating mode Must be located at the entrance to the outlet.

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation
dated December 25, 1998 N 37
“Review of the practice of resolving disputes related to the application of advertising legislation”
18. Indication by a legal entity of its name (company name) on a sign at its location is not advertising
The organization indicated its name in English on a sign in front of the entrance to the occupied premises, since its charter, registered in the prescribed manner, provided for a company name in Russian and English languages, coinciding in pronunciation.
The antimonopoly authority recognized that indicating the name of an organization at its location in this way meets the general definition of advertising formulated in Article 2 of the Law and violates the requirement to distribute advertising in Russian, enshrined in Article 5 of the Law. In this regard, the antimonopoly authority sent the organization an order to stop the violation.
The organization appealed to the arbitration court with a request to invalidate the decision and order of the antimonopoly authority, considering its right to a company name violated and pointing out the confusion with advertising of information serving the purposes of identification and designation.
The court refused to satisfy the stated requirement on the grounds that the information about the name of the organization on the sign meets the general definition of advertising formulated in Article 2 of the Law.
The appellate court overturned the decision, reasonably guided by the following.
Article 54 of the Civil Code of the Russian Federation provides that a legal entity has its own name, which is indicated in its constituent documents. Clause 4 of Article 54 of the Civil Code of the Russian Federation establishes that a legal entity that is commercial organization, must have a company name.
These requirements serve the purpose of identifying legal entities, individualizing them as participants in civil transactions and subjects of public legal relations.
Based on paragraph 2 of Article 52 of the Civil Code of the Russian Federation, the name of a legal entity is determined in its constituent documents. By general rule changes to the latter are valid from the moment of their state registration.
State registration data of legal entities is entered into the unified state register of legal entities, open to the public.
Consequently, the name is a formal and integral feature of a legal entity, changeable in accordance with the established procedure.
Placing a street sign (plate) with the name of a legal entity as an indicator of its location or designation of the point of entry into an occupied premises, building or territory is a common practice and corresponds to business customs established in Russia.
By virtue of Article 9 of the Law of the Russian Federation “On the Protection of Consumer Rights” dated 02/07/92 N 2300-1 (as amended by the Federal Law dated 01/09/96 N 2-FZ), a potential seller of goods or performer of work, services to meet personal, family and household needs The citizen is obliged to bring to the attention of the latter the company name (name) of his organization, its location (legal address) and operating hours by placing the specified information on the sign.
The purpose of information of this nature is to notify an indefinite number of persons about the actual location of a legal entity and (or) designation of the entry point.
Within the meaning of Article 2 of the Law on Advertising, advertising is understood as information disseminated solely to generate and maintain interest in a legal entity or individual, its products, ideas or undertakings.
The indication by a legal entity of its name on a sign (plate) at its location serves other purposes and cannot be considered as advertising.
Information, the dissemination of which in form and content is mandatory for a legal entity on the basis of law or business custom, does not apply to advertising information, regardless of the manner in which it is executed according to the relevant rules.

The sign protrudes into modern world business card of any company dealing retail trade or operating in the service sector. It informs the consumer in advance about the services that the company provides to potential clients. Let's take a closer look at the difference between a sign and an advertisement and whether a sign is an advertising structure under the law.

You can download Federal Law No. 38 “On Advertising” in the latest edition with all changes and amendments at. The Law “On Advertising” regulates all types of advertising - in television broadcasts, radio programs, in print media, in transport, as well as outdoor. It is the latter type that includes advertising signs. More details about outdoor advertising are described in Article 19 of the Federal Law No. 38. According to this provision, this includes various billboards, stands, electronic displays and advertising on the facade of the building. In the latter case, when it comes to installation advertisement on a building or land, it is worth remembering that the installation of an advertising structure should be coordinated with the owner of the property.

The legislation distinguishes between the concepts of outdoor advertising and signs, therefore different legal acts apply to them. Let's look at the difference between these two concepts in more detail below.

From the point of view of the law, advertising is information that is aimed at attracting greater consumer interest in a product or service for its better promotion in the market. The object of advertising can be a product, a service, as well as the announcement of various events - concerts, film premieres, sporting competitions. Dissemination of information about any product/service is carried out through the installation of billboards, stands, displays, etc. on buildings and vehicles. By law, the installation and use of the above advertising structures requires special permission. For violating this rule, a fine may be imposed on an unscrupulous citizen.

It is important to know!Provisionslaw“On Advertising” does not apply to information disseminated to consumers that is required to be disclosed under the Law on Advertising, as well as signs and signs of a non-advertising nature.

This is the main difference between information design and advertising. She does not advertise, but informs. The Law “ZPP” in Article 9 states that the product manufacturer is obliged to inform consumer citizens about the name of the organization, its address and work schedule. Information about the activity being carried out is also required if it is subject to licensing or accreditation. This information is posted on the information board and is not advertising, and therefore does not require permission to install it. It doesn't matter how it's done. It is worth paying more attention to its location. If the sign is located on the outside of the infrastructure, and the entrance to the organization is on the other, then this can be legally recognized as advertising.

The procedure for installing signs in stores

On March 13, 2006, the Law “On Advertising” came into force. It regulates, as mentioned above, the rules and requirements for various types of advertising, their methods of distribution, and also establishes a ban or reduces the dissemination of information about any product. The current latest edition dates back to April 1, 2017, and there is also an edition, the provisions will come into force on September 1 of the same year.

The procedure for installing a sign above a store requires its registration if it contains the following information:

Name;
address;
work schedule;
Kind of activity.

A sign at the entrance to a store, fair or other temporary location is not subject to registration. trading place. The law requires compliance with certain conditions for registration:

If an information board is placed on a house, then its placement is made above the store and does not exceed the boundaries of the premises. It should not go beyond the floor line. Otherwise, the consent of other floor owners is required;
If a sign is placed on the roof, then the consent of all owners of the building is required. Registration is carried out using written consent with a duplicate of the certificate of ownership;
if it is placed on part of an extension or building, then the written consent of its owner should be obtained.

It is prohibited to post information on cultural heritage sites. By law, a permit is issued for 5 years.

Permissible dimensions of a sign on the facade of a building according to the law

The sign on the facade of the building, in accordance with the Law “On Advertising” of the Russian Federation, is located above the entrance or shop windows. If there are several on the wall, they must be on the same axis. If the company is located in the basement, the sign should be located 60 cm from the ground, and its thickness should not be more than 10 cm.

The maximum height of the information board according to the law is 50 cm, the width is 70% of the facade, but not more than 15 m. And the height of the letters is 10 cm. The size of the inscription is not less than 15 cm.

The law stipulates that the language of inscriptions on signs is Russian. It is possible to use graphic images. An inscription made in a foreign language is permitted if:

the trademark is registered in a foreign language;
the right to use this trademark has been obtained;
the name in a foreign language must be 2 times smaller than the inscription with information about the type of activity;
Abbreviations and abbreviations must not be used;
the inscription in a foreign language should not be made in Russian transliteration.

By law, the sign must be illuminated at night.

Fines for signs

Compliance with the Law “On Advertising” is monitored by the FAS and local governments. If violations are detected, they have the right to send an order to the owner of the sign to dismantle it. Within a month it is carried out this procedure. You can appeal the decision of higher authorities through the court within 3 months.

According to the law, placing a sign that contains advertising information without the consent of the relevant authorities or violating the rules for its use leads to imposition of a fine under Art. 14.37 Code of Administrative Offences:

for individuals - 1,000 - 1,500 rubles;
for individual entrepreneurs and organization managers - 3,000 - 5,000 rubles;
for legal entities - 500,000 - 1,000,000 rubles.

The above fines are significant and can harm the financial budget of the organization. For clarification on identifying hidden advertising in a sign, you should contact your local administration.