Tell me, is the name of the store an advertisement? Can the name of the store be considered an advertisement?
Perhaps you mean the name 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 of December 25, 1998 N 37, which explains that the placement of a street sign ... In order for it to be a sign, and not advertising, it is necessary that it meets the requirements of Art. 9 of the Law of the Russian Federation "OZPP" i.e. :
1) name of the organization,
2) its location,
3) mode of operation 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
"Overview 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 the location is not an advertisement
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, coinciding in pronunciation.
The antimonopoly authority acknowledged that indicating the name of the 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 body sent an order to the organization to stop the violation.
The organization applied to the arbitration court with a request to invalidate the decision and order of the antimonopoly body, considering its right to a trade 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 Court of Appeal overturned the decision on the following grounds.
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. Paragraph 4 of Article 54 of the Civil Code of the Russian Federation establishes that a legal entity that is commercial organization must have a brand name.
These requirements serve to identify legal entities, individualize them as participants in civil transactions and subjects of public law relations.
On the basis of paragraph 2 of Article 52 of the Civil Code of the Russian Federation, the name legal entity defined in its founding documents. By general rule changes to the latter are valid from the moment they are state registration.
The data of the state registration of legal entities are 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, which is changed in the established manner.
Placement of a street sign (tablet) with the name of a legal entity as an indicator of its location or designation of the place of entry into the occupied premises, building or territory is a common practice and corresponds to the customs prevailing in Russia business turnover.
By virtue of Article 9 of the Law Russian Federation“On the Protection of Consumer Rights” of 07.02.92 N 2300-1 (as amended by the Federal Law of 09.01.96 N 2-FZ), a potential seller of goods or a performer of work, services to meet the personal, family and household needs of a citizen is obliged to bring to the attention of the latter the company the name (name) of your organization, its location (legal address) and mode of operation by placing the specified information on the sign.
The purpose of information of this nature is to notify an indefinite circle of persons about the actual location of the legal entity and (or) designate the place of entry.
Within the meaning of Article 2 of the Law on Advertising, such information is understood as information disseminated solely for the formation and maintenance of interest in a legal or natural person, his goods, ideas or undertakings.
The indication by a legal entity of its name on a sign (tablet) at the location pursues other goals and cannot be considered as advertising.
Information, the distribution of which in form and content is mandatory for a legal entity on the basis of the law or business practice, does not apply to advertising information, regardless of the manner in which they are executed on the appropriate basis.
Information, disclosure or distribution or bringing to the consumer of which is mandatory in accordance with the Federal Law (see Law of the Russian Federation of February 7, 1992 N 2300-1 "On Protection of Consumer Rights");
Reference, information and analytical materials (reviews of domestic and foreign markets, results scientific research and tests) that do not have as the main goal the promotion of goods on the market and are not social advertising;
Bodies messages state power, other government agencies, message bodies local government, messages of municipal bodies that are not part of the structure of local governments, if such messages do not contain advertising information and are not social advertising;
Signboards and signs that do not contain information of an advertising nature;
Announcements of legal entities not related to implementation entrepreneurial activity;
Information about the product, its manufacturer, importer or exporter, placed on the product or its packaging;
Any elements of product design placed on the product or its packaging and not related to another product;
The mention of a product, the means of its individualization, the manufacturer or seller of the product, which are organically integrated into works of science, literature or art and in themselves are not advertising information.
Consequently, the costs of bringing these types of information to the consumer cannot be taken into account when taxing profits as advertising.
We can list the following types of information, not related to advertising, on which there were controversial opinions.
Mandatory publication of financial statements.
A web page in the form of an online store does not meet the definition of advertising, it is a public offer.
Mandatory information on the sign.
Back in 1998, the Presidium of the Supreme Arbitration Court of the Russian Federation in the Information Letter dated December 25, 1998 N 37 explained that the information on the sign is not advertising, because indicating your name on the sign at the location of the organization does not pursue advertising purposes. The sign indicates the entrance to the occupied premises, therefore it cannot be considered as advertising. However, the financial authority takes a different view. Letter No. 03-03-04/1/322 dated April 5, 2006 states that the name of the store is outdoor advertising and the cost of it should be included in other expenses. This position is incomprehensible, since, according to paragraphs. 5 p. 2 art. 2 of the Law "On Advertising", its provisions do not apply to signs and signs that do not contain advertising information. Accordingly, these objects are not advertising. For the purpose of taxation of profits, the costs of signs and signs are taken into account in accordance with paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code, since signs and signs are necessary for the taxpayer to inform potential consumers of his goods (works, services) about their location, which means that such expenses meet the criteria of paragraph 1 of Art. 252 of the Tax Code.
If the organization publishes information that does not meet the general criteria for expenses that reduce profits for tax purposes, for example, about the anniversary of the company, then such costs cannot be taken into account for profit tax purposes.
With such a distribution disappears main feature advertising - addressing to an indefinite circle of persons, therefore, such expenses are not advertising. Arbitration courts held this opinion even before the entry into force of the new Law on Advertising. For example, in the Decree of the Federal Antimonopoly Service of the Moscow District of February 18, 2002 in case N KA-A40 / 418-02 it is stated: " Postal items were addressed to specific persons, and the fact that other persons had the opportunity to familiarize themselves with the contents of these items does not mean that the plaintiff had an intention to bring the information to an indefinite circle of people. The plaintiff's actions were not aimed at achieving an advertising result, but at concluding an agreement with a specific person. The direction and goals of the disseminated information determine its purpose for a circle of people, in this case - a certain person. At the same time, the number of shipments in general, as well as the method of making a decision on sending information to a specific person, does not matter: addressees were selected from a limited or not circle of people. The very fact of the choice of addressees means the plaintiff's intention to acquaint a certain person with the information. Even the randomness of such a choice still limits the circle of those persons to whom the information is intended and to whom an offer was made to conclude an agreement on specific conditions. The coincidence of the conditions on which it is proposed to conclude an agreement with each addressee does not turn an individual offer into a public offer.
The Ministry of Finance and the Federal Tax Service clarified with regard to direct mailing that for organizations transmitting advertising materials through targeted mailing list database of potential clients individuals), such costs are not related to advertising, as this information is intended for specific individuals. In addition, the costs associated with the gratuitous transfer of product catalogs, flyer about the company and the form for placing an order, in their opinion, are not taken into account for the purposes of taxation of profits on the basis of paragraph 16 of Art. 270 of the Tax Code.
The fact is that, in accordance with the Law on Advertising, it is precisely the uncertainty of the circle of persons receiving information that is the main criterion, in case of non-compliance with which the organization is not entitled to recognize expenses as advertising. That is, the costs of bringing to a potential consumer information documents cannot be taken into account for the purpose of calculating income tax on the basis of paragraph 16 of Art. 270 of the Tax Code.
However, the question arises: what is considered in this case an indefinite circle of persons? If an advertisement is given in a subscription-based magazine, is such advertisement considered information for a limited circle of subscribers? Although the option is not ruled out when subscribers will transfer advertising to other persons, which will create distribution uncertainty. Since the Law on Advertising does not stipulate what should be understood by "an indefinite circle of persons", in this case it can be argued: we are talking about persons who are not known to the advertiser in advance.
That is, even with direct mail, you can talk about advertising costs. Due to the ambiguity of interpretation, litigation arises. And I must say that in arbitration practice there are examples that indicate that the distribution of advertising among a predetermined circle of persons is lawful (see, for example, Resolutions of the Federal Antimonopoly Service of the Moscow District of August 4, 2005 N KA-A40 / 7346-05, Ninth of the Arbitration Court of Appeal dated February 20, 2006 N 09AP-177 / 06-AK (Decision of the Federal Antimonopoly Service of the Moscow District dated May 15, 2006 N KA-A40 / 3982-06 upheld the decision)). Yes, and the Law on Advertising itself contains provisions indicating that advertising can be information distributed to previously known persons. For example, with regard to advertising distributed over telecommunication networks, including through the use of telephone, facsimile, mobile radiotelephone communications, in paragraph 1 of Art. 18 of the Law "On Advertising" states that such advertising is allowed only with the prior consent of the subscriber or addressee to receive advertising. Therefore, we can conclude that advertising is distributed among a certain circle of people. At the same time, there are opposite decisions in which judges support the tax authorities. Thus, in the Decree of the Federal Antimonopoly Service of the Moscow District dated April 28, 2005 N KA-A40 / 3274-05, it is noted that a comparison of the norms of tax legislation and legislation on advertising leads to the conclusion that the key to accounting for advertising expenses for tax purposes is the dissemination of information to an indefinite group of people. As follows from the materials of the case, including the act of writing off costs, which the applicant considers confirmation of the transfer of information of an advertising nature to an indefinite circle of persons, the recipients of information about the company on tangible media are specifically named. Thus, there is no element of uncertainty of recipients, which is typical for the dissemination of advertising information.
We also note that if the distribution of advertising information is intended for a certain circle of potential buyers and it contains information about all the essential terms of the contract of sale and a proposal to conclude an agreement with anyone who responded to the special offer regular customer, then such costs can be classified as an individual offer in accordance with Art. 437 Civil Code. In other words, such catalogs are distributed for the purpose of concluding a contract for the goods sold, and not advertising. According to the explanations of the Moscow tax authorities (Letters of August 18, 2006 N 20-12 / 74671, of November 24, 2003 N 26-12 / 65176), in order to calculate income tax, these expenses may be included in other expenses related to production and sale, on the basis of paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code.
Production of branded postal envelopes intended for sending correspondence to the firm's counterparties, even if the envelope contains an advertising leaflet.
The opinion of the Ministry of Finance of Russia is set forth in Letter No. 03-03-04/1/801 dated November 29, 2006, according to which this information is intended for specific persons. According to the explanations of the Ministry of Finance of Russia, the costs of applying (printing) advertising information on envelopes cannot be taken into account in advertising costs, since they do not correspond to the concept of advertising established by paragraph 1 of Art. 3 of the Law "On Advertising": the cost of making envelopes with a link to the organization's website, as well as the cost of making business cards for employees that display the organization's logo, are not recognized as advertising costs, since this information is intended for specific individuals. With proper justification, such costs can be recognized in accounting as part of other expenses in full.
Prizes and gifts with the company logo to counterparties.
Such transmission is not recognized as advertising. In addition, it is unlikely that these expenses will be taken into account as other expenses for income tax purposes. According to paragraph 16 of Art. 270 of the Tax Code, do not reduce tax base income tax expenses in the form of the value of property transferred free of charge (works, services, property rights) and expenses associated with such transfer. Since the transfer of products with the taxpayer's logo to a certain circle of persons is not recognized as advertising, such an operation is considered as a gratuitous transfer of property. However, if souvenirs or prizes with company symbols are distributed during an official reception to representatives of counterparty organizations participating in negotiations with the aim of establishing and (or) maintaining mutual cooperation, then, in the opinion of the tax authorities, such expenses can be taken into account as representative expenses on the basis of clause 3.1. 2 tbsp. 264 of the Tax Code (see Letter of the Ministry of Taxation of Russia dated August 16, 2004 N 02-5-10 / 51). At the same time, it should be taken into account that the fact of business negotiations must be documented, and hospitality expenses for profit tax purposes are normalized (no more than 4% of the taxpayer's expenses for wages for the reporting (tax) period).
Placement of job advertisements in the media.
Placement of vacancy announcements (recruitment of employees) in the media is not advertising. Such expenses for the purpose of taxation of profits are classified as other expenses on the basis of paragraphs. 8 p. 1 art. 264 of the Tax Code as expenses for the recruitment of employees (Letter of the Ministry of Finance of Russia dated February 28, 2003 N 04-02-05 / 2/10).
Making business cards.
The most common types of business cards in our time are:
Personal business card, which indicates the last name, first name, patronymic, position of the owner of the business card and the name of the organization in which he works;
Corporate business card, which, as a rule, contains brief information about the organization: the logo of the organization and its name, postal and legal address, email address, official web site, contact information, description of the organization's activities, mode of operation. At the same time, the personal data of the employee of the organization using the business card is not disclosed. All Additional Information is written at the time of acquaintance on a clean reverse side. Such cards are used by sellers, managers, employees working with the organization on a piece-rate basis, and also in some cases by the heads of the organization, who prefer not to give new acquaintances their coordinates;
Personal business card, which contains only the surname, name, patronymic of the owner without indicating the name of the organization. Such business cards are used, as a rule, by representatives creative professions- actors, journalists, writers, artists, etc.
In accordance with the All-Russian classifier of products OK 005-93, approved by the Decree of the State Standard of Russia of December 30, 1993 N 301, business cards are classified as products of the printing industry (code 95 4270), which can be used by organizations:
For management purposes (informative function of business cards);
Depending on the function that certain business cards are designed to perform, the costs of their production are taken into account for tax purposes in different ways.
The function of a business card can be determined based on the information placed on the business card and the person to whom it is intended.
Depending on this, for the purposes of calculating income tax, an organization may recognize the costs of manufacturing business cards:
Or as part of other expenses associated with production and sale - as expenses for advertising manufactured (purchased) and (or) sold goods (works, services), activities of the taxpayer, trademark and service mark, including participation in exhibitions and fairs (clauses 28, paragraph 1, article 264 of the Tax Code of the Russian Federation), subject to the provisions of paragraph 4, Art. 264 of the Tax Code;
Or as part of other expenses associated with production and sales - as other expenses associated with production and sales (clause 49, clause 1, article 264 of the Tax Code of the Russian Federation).
If the costs for the production of business cards do not meet the criteria established by paragraph 1 of Art. 252 of the Tax Code, such expenses are not taken into account for the purposes of calculating income tax on the basis of paragraph 49 of Art. 270 of the Tax Code.
If the business card performs an informative (representative) function, that is, the business card contains the logo and name of the organization in which its owner works, first name, patronymic, last name, position (title, title) of the employee of the organization, contact phone number, fax, telex, address corporate website and Email, then the purpose of such a business card is to represent the identity of the employee of the organization for a limited circle of people, determined by the employee himself. The information presented on such a business card is not public, it does not form and does not support interest in the products manufactured by the company (work performed, services provided). Accordingly, such information does not meet the advertising criteria set out in Art. 3 of the Federal Law of March 13, 2006 N 38-FZ "On Advertising".
According to the opinion of the Ministry of Finance of Russia, set out in the Letter of November 29, 2006 N 03-03-04 / 1/801, the costs of manufacturing business cards for employees of the organization, which depict the logo of the organization, are not recognized as advertising costs, since this information is intended for specific individuals. Consequently, the costs of producing such informative (representative) business cards can be recognized for the purposes of calculating income tax as part of other costs associated with production and sale, as other costs on the basis of paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code.
The Decree of the Federal Antimonopoly Service of the Moscow District dated April 12, 2006 in case N KA-A40 / 2534-06 states that since business cards were used in this case by employees of various departments of the enterprise to perform their duties and at the same time lists of employees were presented for whom business cards were ordered, the entity was entitled to recognize these costs as part of other miscellaneous expenses (rather than advertising expenses). A similar position is set out in the Resolutions of the Federal Antimonopoly Service of the Urals District dated May 5, 2005 in case N F09-1830 / 05-C7, dated March 11, 2004 in case N F09-827 / 04-AK, dated January 26, 2004 on case N F09-4994 / 03-AK, dated March 3, 2003 N F09-451 / 03-AK, FAS of the North-Western District of August 5, 2002 N A56-4649 / 02, FAS of the Volga District of December 2, 2004 in case N A55-3696 / 04-8.
According to the opinion of the tax authorities, set out in the Letter of the UMNS of Russia for the city of Moscow dated October 15, 2003 N 26-12 / 57647, for the purposes of taxation of profits, expenses for the production of business cards for employees of the organization who, in accordance with their official duties, carry out commercial activity organizations that maintain contact with business partners and contractors. And official duties this category of workers should be determined by the relevant job descriptions approved in the appropriate manner.
In support of the above position, the tax authority referred to paragraph 1 of Art. 252 of the Tax Code, according to which the income tax payer reduces the income received by the amount of expenses incurred (with the exception of the expenses specified in Article 270 of the Tax Code of the Russian Federation). At the same time, justified and documented costs (and in the cases provided for by Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer are recognized as expenses. Justified costs are understood as economically justified costs, the assessment of which is expressed in monetary form. Documented expenses mean expenses confirmed, among other things, by documents drawn up in accordance with the legislation of the Russian Federation. Any costs are recognized as expenses, provided that they are made for the implementation of activities aimed at generating income (clause 1, article 252 of the Tax Code of the Russian Federation).
Thus, if business cards are made for representative purposes, namely, to represent employees of an organization communicating with a limited circle of people, which are determined by the employees themselves, and also if the cards do not contain advertising slogans, then such a business card is not a method of advertising. The basis for this conclusion is the inconsistency with the definition of advertising given in the Federal Law "On Advertising". The organization has the right to recognize the costs of manufacturing such business cards as part of other costs associated with production and sale on the basis of paragraphs. 49 paragraph 1 of Art. 264 of the Tax Code, but subject to the requirements of paragraph 1 of Art. 252 of the Tax Code.
Given that informative (representative) business cards are made so that an employee of an organization can perform his duties in the interests of the organization, this employee does not receive any material benefit for himself. Therefore, the cost of business cards issued to an employee whose job responsibilities include maintaining business contacts with other organizations is not included in his income and is not subject to personal income tax.
If informative (representative) business cards are made by an organization for employees whose job responsibilities do not include maintaining contacts with business partners (for example, security guards, cashier, etc.), then from the cost of manufactured business cards (including VAT) should be personal income tax was withheld (clause 2, clause 2, article 211 of the NKRF).
However, there are situations when an organization places information on business cards, but their content is advertising.
If such business cards are distributed, for example, at accounting seminars, at exhibitions, are invested in packages when packing the purchased goods, that is, among an indefinite circle of people, then the costs of their production and distribution should be recognized as advertising costs on the basis of paragraphs. 28 p. 1 art. 264 of the Tax Code, subject to the requirements of paragraph 1 of Art. 252 of the Tax Code (as part of other standardized types of advertising in accordance with paragraph 4 of article 264 of the Tax Code of the Russian Federation).
RESOLUTION OF THE PRESIDIUM OF THE SAC RF DATED 22.05.2012 N 15805/11
ON CASE N А71-1684/2011-А31
"THE BRINGING THE COMPANY TO ADMINISTRATIVE RESPONSIBILITY FOR VIOLATION OF THE LEGISLATION ON ADVERTISING IS ILLEGAL IF THE SIGN IS PLACED INFORMATION THAT IS NOT RELATED TO ADVERTISING, IN PARTICULAR, INFORMATIONAL ABOUT THE COMPANY'S ACTIVITIES"
The essence of the dispute
In the course of carrying out measures to monitor compliance with advertising legislation, the antimonopoly authority found that on the structure located next to the entrance group to the dental salon, Zhemchug Dental Salon LLC (hereinafter referred to as the company) placed the following information: "Dental treatment, prosthetics, orthodontic services (bite correction) gum treatment teeth whitening".
This information recognized by the antimonopoly authority as advertising. Meanwhile, advertising of dental services should contain a warning about the presence of contraindications to their use and the need to obtain expert advice.
The antimonopoly body, by its decision, recognized this advertisement as improper and issued an order to the company to stop the violation, and also drew up a protocol on an administrative offense. The company was brought to administrative responsibility under Part 1 of Art. 14.3 of the Code of Administrative Offenses of the Russian Federation, for violation of the legislation on advertising in the form of a fine in the amount of 100,000 rubles.
Disagreeing with the said decision, prescription and resolution of the antimonopoly body, the company applied to the arbitration court with demands to declare them illegal and cancel them.
When considering this case, the courts faced the question: what information can be attributed to advertising?
The question of attributing the posted information to advertising
According to paragraph 1 of Art. 3 of the Federal Law of March 13, 2006 N 38-FZ "On Advertising" (hereinafter - the Law on Advertising), advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object advertising, generating or maintaining interest in it and its promotion in the market.
Advertising that does not meet the established requirements of the law is improper (clause 4, article 3 of the Law on Advertising). The current legislation provides for administrative liability for violation of the legislation on advertising (part 1 of article 14.3 of the Code of Administrative Offenses of the Russian Federation).
As a general rule, Art. 9 of the Law of the Russian Federation of 07.02.1992 N 2300-1 "On Protection of Consumer Rights", the manufacturer (executor, seller) is obliged to inform the consumer of the company name (name) of his organization, its location (address) and mode of operation. The seller (executor) places this information on the sign.
By virtue of paragraph 2 of this article, the consumer must be brought to the attention of, among other things, information on the type of activity of the manufacturer (executor, seller), if the type of activity is subject to licensing and (or) the performer has state accreditation.
Special requirements for advertising medical services, including methods of treatment, are established by Art. 24 of the Law on Advertising. Based on part 7 of this article, advertising of medicines, medical services, including methods of treatment, m! medical equipment should be accompanied by a warning about the presence of contraindications to their use and use, the need to familiarize themselves with the instructions for use or obtain expert advice.
The issue of classifying posted information as advertising was resolved in judicial practice ambiguously.
In a number of cases, the courts, when considering cases of violation of the legislation on advertising, attributed information posted on the facades of buildings of informational nature to advertising, applied the provisions of the Law on Advertising in these disputes and, accordingly, refused to satisfy the requirements for the cancellation of decisions on bringing to administrative responsibility .
Thus, the courts pointed to the legitimacy of bringing to administrative responsibility for placing on the facade of a building information containing a list of works (services) performed (rendered), in particular, in the implementation medical activities. This information, according to the courts, was an advertisement for medical services, which is why it should have contained a warning about the presence of contraindications to the use of medical services and an indication of the need to obtain specialist advice (see, for example, the Resolution of the Sixteenth Arbitration Court of Appeal dated 10.02. 2012 in case N A63-7164 / 2011, of the Tenth Arbitration Court of Appeal dated May 31, 2011 in case N A41-45143 / 10).
However, there are opposite judgments in which the courts satisfied the requirements to invalidate the decisions and orders of the administrative body.
In particular, the court noted that if the sign posted on the facade of the building does not contain an indication of a specific person providing medical services, aims to inform only about the place where these services are provided, then such a sign cannot be considered as an advertisement for a specific person (advertiser). In the text of the advertisement, the person providing the services is not individualized (Resolution of the Nineteenth Arbitration!
A similar point of view is also reflected in the Resolution of the Eighth Arbitration Court of Appeal dated March 24, 2011 in case N A70-11144 / 2010.
The court concluded that the information "EURASIA law firm tel. 46-01-11", located on the information module (on the support along with the sign traffic), is not recognized as an advertisement, since it is a means of individualizing a legal entity in the form of a brand name and cannot generate interest among an indefinite circle of people, promote this designation in a specific service market, and also does not allow identifying the named inscriptions as advertising of specific types of goods, works, services. The court also noted that this information does not contain any judgments about the advantages of this organization over others, but only optimizes the search for an object for the provision of services with the interest of the company's clients previously formed in it.
The Federal Antimonopoly Service of the Volga District came to a similar conclusion, pointing out that the information posted on the signboard related to the type of activity of a legal entity and was mandatory for it due to business customs. This information did not contain information about the object of advertising - the product, the means of its individualization, the manufacturer or seller of the product, about the legal entity, ideas and initiatives, and the information was widespread and depersonalized (Resolution of the Federal Antimonopoly Service of the Volga District of 01.22.2009 in case N A12-9231 / 2008). Conclusions similar to those mentioned are contained in the Decree of the Federal Antimonopoly Service of the Moscow District dated December 26, 2011 in case N A40-46648 / 11-20-184.
In addition, the conclusion that information about the type of activity of a legal entity, which is obligatory for it due to business customs, cannot be information about the object of advertising, was confirmed in paragraph 18 information letter Presidium of the Supreme Arbitration Court of the Russian Federation of December 25, 1998 N 37 "Review of the practice of resolving disputes related to the application of advertising legislation." According to this paragraph, information, the distribution of which in form and content is for legal! legally binding on the basis of law or customary business practice, do not apply to advertising information.
It should be noted that in some cases the courts pointed out the unlawfulness of bringing to administrative responsibility for posting information that contains a list of works (services) performed by the organization. This is justified by the fact that such information does not meet the signs of advertising and the rules providing for liability for violation of advertising legislation should not be applied.
In this regard, the conclusion of the Federal Antimonopoly Service of the West Siberian District that the sign with the name and mode of operation, which is a list of dental services in order to inform consumers about the activities of the organization, does not meet the signs of advertising, is interesting. It should be borne in mind that the information under consideration does not contain methods of treatment, and there is also no indication of the use of specific medicines or medical equipment in the provision of these services. Under such circumstances, there are no grounds for establishing the fact of violation of the Law on Advertising (Resolution of the Federal Antimonopoly Service of the West Siberian District of June 28, 2012 in case N A03-7673 / 2011).
Decisions of courts of different instances
The courts of three instances recognized the conclusions of the antimonopoly authority as legitimate and refused to satisfy the stated demands for the cancellation of the order to eliminate violations and the decision to impose a fine in the case of an administrative offense.
In refusing to satisfy the stated requirements, the courts proceeded from the proof by the antimonopoly authority of the dissemination of improper advertising by the company, the compliance of the decision and prescription with the requirements of the current legislation, the presence of the composition of the imputed administrative offense and lack of grounds for recognizing it as insignificant.
The argument that information about the types of activities of the company was posted in order to inform consumers about the types of services provided in the salon was recognized by the courts as untenable.
According to the courts, this information was aimed at creating a consumer's preferential interest in the services provided by the company.
The Supreme Arbitration Court of the Russian Federation, in Ruling No. VAS-15805/11 dated February 24, 2012 in case No. A71-1684/2011-A31, concluded that it was necessary to review judicial acts of lower instances in the exercise of supervision.
The legal reasoning contained in this Definition, was generally accepted by the Presidium of the Supreme Arbitration Court of the Russian Federation.
Please note that the Determination of the Supreme Arbitration Court of the Russian Federation is a procedural act and does not contain the legal position of the Supreme Arbitration Court of the Russian Federation, since it does not resolve the dispute on the merits.
Position of the Presidium of the Supreme Arbitration Court of the Russian Federation
The Presidium of the Supreme Arbitration Court of the Russian Federation annulled the decision of the court of first instance, as well as the decisions of the appellate and cassation instances, and satisfied the requirements stated by the company. At the same time, the highest judicial instance formulated the following legal position.
If the information posted by the organization on the sign is a list of services provided by the organization in order to inform consumers about the activities of this organization, then such information does not meet the signs of advertising and the norms of the legislation on advertising in this case do not apply.
At the same time, as follows from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation, in order to conclude that the posted information is informational in nature and does not apply to advertising, it should not contain an indication of the use of specific means and equipment used in the provision of services, and as well as methods of service delivery.
The Presidium of the Supreme Arbitration Court of the Russian Federation indicated that judicial acts of arbitration courts that have entered into force in cases with similar factual circumstances, adopted on the basis of a rule of law in an interpretation that differs from the interpretation contained in the Resolution under consideration, can be reviewed on the basis of clause 5, part 3 Art. 311 of the APC of the Russian Federation, if there are no other obstacles for this.
It should be noted that by virtue of clause 11 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2011 N 52 "On the application of the provisions of the Arbitration Procedure Code of the Russian Federation when reviewing judicial acts on new or newly discovered circumstances" this indicates that this legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation is reversed strength.
In this regard, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation under consideration is the basis for the revision of judicial acts due to new circumstances.
The sign stands out in modern world calling card any company involved in retail or operating in the service sector. It informs the consumer in advance about the services that the company provides to potential customers. Let us consider in more detail what is the difference between a sign and an advertisement and whether a sign is an advertising structure according to the law.
Download the federal law No. 38 "On Advertising" in the latest edition with all changes and amendments can be found at. The Law "On Advertising" regulates all types of advertising - in television programs, radio programs, printed publications, in transport, as well as outdoor. It is to the latter type that advertising signs are referred. More information about outdoor advertising is described in Article 19 of the Law FZ-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 installing an 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 concept of outdoor advertising and signboards, therefore, different rules apply to them. legal acts. Let’s take a closer look at the difference between these two concepts in more detail.
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 for advertising can be a product, service, as well as the announcement of various events - concerts, film premieres, sports competitions. Dissemination of information about any product/service is carried out through the installation billboards, stands, scoreboards, etc. on buildings, transport. By law for the installation and use of the above advertising structures special permission is required. Violation of this rule may result in a fine being imposed on an unscrupulous citizen.
It's important to know!Regulationslaw“On Advertising” does not apply to information distributed to the consumer that is required to be disclosed under the RFP Law, as well as signs and signs of a non-advertising nature.
This is the main difference between information design and advertising. It does not advertise, it informs. The RFP Law states in Article 9 that the manufacturer of products is obliged to inform citizens-consumers about the name of the organization, its address and work schedule. It is also mandatory to indicate information about the activities carried out, if it is subject to licensing or accreditation. This information is placed on the information board and is not advertising, and therefore does not require permission to install it. It doesn't matter how it is 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 side, then this can be recognized by law 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 different types of advertising, their methods of distribution, and also establishes a ban or reduces the dissemination of information about any product. Current latest edition dated 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 over a store involves its registration if it contains the following information:
- Name;
- address;
- work schedule;
- Kind of activity.
A sign at the entrance to a store, at a fair or in another temporary trading place is not subject to registration. The law requires certain conditions to be met in order to register:
- if the information board is placed on the house, then its placement is made above the store and does not exceed the boundaries of the premises. It should not go beyond the line of the floor. Otherwise, the consent of other floor owners is required;
- if the sign is placed on the roof, then the consent of all the owners of this building is required. Registration is carried out with the help of written consent with a duplicate of the certificate of ownership;
- if placed on a part of an extension or building, then the written consent of its owner should be obtained.
It is forbidden to place information on cultural heritage sites. By law, a permit is issued for 5 years.
Permissible sizes of signs on the facade of the 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, then 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 exceed 10 cm.
The maximum height of an 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 regulates that the language of inscriptions on signs is Russian. It is possible to use graphics. An inscription made on foreign language is allowed if:
- the trademark is registered in a foreign language;
- the right to use this trademark has been obtained;
- the name in a foreign language should be less than the inscription with information about the type of activity by 2 times;
- abbreviations and abbreviations cannot be used;
- the inscription in a foreign language should not be made in Russian transliteration.
By law, signs must be illuminated at night.
Fines for signs
Compliance with the law "On Advertising" is monitored by the Federal Antimonopoly Service and local governments. They have the right, if violations are detected, to send an order to the owner of the sign for its dismantling. This procedure is carried out within a month. You can appeal the decision of higher authorities through the court within 3 months.
According to the law, for the placement of a sign that contains information of an advertising nature, without the consent of the relevant authorities, or violation of the rules for its use leads to the imposition of a fine under Art. 14.37 Administrative Code:
- for individuals - 1,000 - 1,500 rubles;
- for an individual entrepreneur and a manager of an organization - 3,000 - 5,000 rubles;
- for legal entities - 500.000 - 1.000.000 rubles.
The above fines are significant in size and can harm the financial budget of the organization. For clarification on identifying hidden advertising the sign should refer to the local administration.
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