Yesterday, Sberbank spent the entire day posting notes and messages complaining about VTB stealing their product – a short-term loan service. Apparently, Herman Gref's organization forgot that most of their most popular products were also stolen. And when the victims try to restore justice, Gref immediately resorts to administrative force. The most famous story concerns SberPay QR. VChK-OGPU and Rucriminal.info will cover it today.
At one time, businessman Gleb Markov launched the Pay QR service in Russia – a cloud-based payment infrastructure for mobile phones and tablets based on QR coding, NFC, and Bluetooth Smart technologies. He registered the corresponding trademark and created mobile apps. His product gained demand, attracting major clients. Among them was Sberbank, which officially entered into negotiations to acquire PayQR from Markov. Here's a photo of PayQR CEO Gleb Markov and Sberbank Deputy Chairman Stanislav Kuznetsov at the PayQR booth at the Sberbank forum in 2016. The state bank acted strangely during the negotiations, clearly stalling for time, but whetted Markov's appetite with repeated promises to first integrate his PayQR into Sberbank's official product line. In exchange for these promises, it requested a wealth of technical information (including the necessary information to obtain source codes), customer databases, and so on. Then, unexpectedly, Sberbank abruptly ended the negotiations. Soon, Sberbank added... SberPay QR. Well, that is to say, the "most digital" bank didn't even bother coming up with a name for the stolen product; they simply added the word "Sber" to the Pay QR registered by Markov. Apparently, that's why Sberbank didn't even register the SberPay QR trademark.
As a result, Markov's PayQR demonstrated steady growth until 2019, acquiring new major clients. In 2019, the businessman's company received 200 million rubles in its account. After Sber's stolen product entered the market, his profits immediately halved, reaching 100 million rubles in 2020. By 2023, they had fallen to 10 million rubles.
Sber simply refused to respond to all of Markov's claims. Then the businessman went to court. It would seem obvious: Markov has trademarks, while Sber uses unregistered designations, exactly the same as Markov's. Rospatent has recognized all elements of the PayQR trademarks as protected. There's Part IV of the Civil Code, law enforcement practice, and clarifications from higher courts. To say that SberPay QR cannot be confused with Pay QR is absurd.
But the Russian judicial system is grounding the situation from the start. Especially when the defendant is a state-owned bank.
In its response, Sberbank insisted that the sociological study claiming people simply can't distinguish between SberPay QR and Pay QR polled the wrong categories of respondents. This was an easily verifiable fraud. No groups of respondents were excluded or studied separately, because they shouldn't have been (everyone is a consumer of payment services). This was confirmed by a review by the Institute of Sociology of the Russian Academy of Sciences. However, Judge Anna Mishchenko ignored all of Markov's arguments and copied and pasted all of Sberbank's arguments into her decision.
At the first hearing "on the merits," Markov's representatives submitted 27 pages of explanations, rigorously refuting the arguments of their opponents. Mishchenko doesn't even open these explanations and uses none of them in the decision. And just minutes before the operative part of the decision was announced, Mishchenko asked Markov, "Do you have your own mobile apps?", shocking even her opponent. Coming to his senses a few seconds later, Markov replied that PayQR mobile apps were, in fact, the only thing he had, he'd been commercializing them for over 10 years, and all the volumes of evidence were devoted exclusively to them.
How could he be so out of touch with the material just minutes before "making an objective decision"?
And the appellate court figured it all out. He pointed out that he disagreed with the first instance, stating that the trademarks and the disputed designations are similar (at least by virtue of the full inclusion of the PayQR element), and that the services provided are interchangeable. The consumer survey presented as evidence of actual confusion was free of the problems described by the trial court, its accuracy was confirmed by a review by professional sociologists from the Russian Academy of Sciences, and that the defendant had not provided an alternative review. He also stated that the disputed designations in the case were not Sber's trademarks, that Sber had known about the PayQR trademarks long before introducing its SberPay QR, that the infringements of exclusive trademark rights were flagrant, and so on. Essentially, the appellate court was the only one that did not deny the plaintiff the right to legal protection or attempt to silence him, did not try to limit the resolution of a serious claim to a single hearing, and spent six months reviewing the explanations and other evidence, recognizing its responsibility. Simply put, it acted within the law. The final resolution states that “Sat Erbank knew about the illegal use of service marks, intentionally infringed copyright, and foresaw the consequences of such infringement. The judge awarded 1.45 billion rubles in damages. But is it really possible in Russia for Kroshka Kartoshka to defeat Gazprom?
Gref deployed his administrative resources. As a result, Sergei Sedov, Chairman of the Ninth Arbitration Court of Appeal, and Boris Steshan, Judge of the same court, were stripped of their status at the request of Igor Krasnov, Chairman of the Supreme Court of the Russian Federation.
The cassation court decided not to even pretend to have any intrigue and scheduled the hearing a day and a half before it was due to take place, without waiting for the deadline for filing cassation appeals and without receiving these appeals from all parties to the case. The cassation court deemed the violations of Articles 121 and 278 of the Arbitration Procedure Code of the Russian Federation insufficient. Therefore, instead of remanding the case for a new trial, it based its decision on circumstances that were not only unsubstantiated and not examined by the courts that heard the dispute on the merits, but also not even stated by the parties. Thus, the Intellectual Property Court applied the principles of consumer habituation, widespread use, and the possibility of coexistence to Sberbank's trademarks, which are not considered intellectual property but infringe upon the intellectual property rights of third parties, an act expressly prohibited by the very first article of the Civil Code. This means that one can profit from one's illegal behavior—to do so, the law must be violated as widely and actively as possible. Or simply by state ownership.
The cassation court's approach perfectly embodies the key characteristic of Russian justice: one must be able to interpret the law in favor of the desired decision, rather than arriving at a decision by examining evidence and applying the law.
Igor Krasnov, Chairman of the Supreme Court of the Russian Federation, recently commented in his RBC column on the low cost of arbitration proceedings in Russia. However, private businesses are willing to pay whatever it takes for impartial justice, and resolving economic disputes with state-owned companies, the outcome of which is always predetermined, undermines the authority of the judiciary, even if it is carried out completely free of charge.
"Won't our children live in this country, with this judicial system? And perhaps their rights will also be violated by the actions of state-owned companies," asks a source for the Cheka-OGPU and Rucriminal.info.
