FAS: it is allowed to indicate only registered trademarks in the procurement documentation
The Federal Antimonopoly Service clarifies the rules for specifying a specific trademark in procurement applications under 44-FZ. Below are the 5 main theses.
What is considered a trademark
For the purposes of 44-FZ, only a registered designation is recognized as a trademark, information about which is entered in the State Register of Trademarks of Rospatent. Any "self-names" or marketing brands without registration do not give the right to indicate them as a trademark.
The indication in the application
– The participant is obliged to inform about the presence or absence of the sign.
– If the mark is in the registry, you need to specify the data that allows you to identify it (certificate number, otherwise).
– If there is no sign, it is acceptable to write "no/absent" directly.
– You can't specify multiple characters per position.
– The application will be rejected if: the mark is not specified if it is in the registry; an unregistered mark is claimed; the information does not match the registry.
Multiple trademarks
The FAS emphasized separately that the legislation does not provide for the indication of several trademarks for one item of goods. If the participant does so, the application is deemed non-compliant with the requirements of 44-FZ.
Validation check
The customer's commission has the right to verify information about the trademark, comparing it with the data of the State Register. The FAS confirms the right of the procurement commission to take "reasonable and lawful measures" to verify the accuracy of the information.
Trademark as a condition of the contract
Trademark information included in the contract through the winner's application is considered an essential condition of the contract. It can be changed only in accordance with the procedure established by Part 7 of art. 95 44-FZ, that is, by agreement of the parties and only upon delivery of goods with improved characteristics compared to the contract.
The Service recommends that public procurement participants carefully study the new clarifications in order to avoid technical errors when submitting applications.