The right to use the trademark. A trademark is the face of an organization. Accounting and tax accounting

Registered in the State Register of Trademarks, it is certified by a certificate (Article 1481 of the Civil Code of the Russian Federation). The Civil Code of the Russian Federation does not contain restrictions on goods for which a trademark can be registered. As a rule, companies seek to register their own trademark in order to promote their products on the market, their recognition by consumers and maintain their own image.

Let's consider what you need to pay attention to, taking into account the costs of creating a trademark, registering it and using it in order to avoid additional tax charges. And also what tax difficulties does a company face in case of refusal to register a trademark or in connection with turnover

Costs of creating a trademark

For income tax purposes, a trademark is an intangible asset. The Tax Code does not directly establish criteria for classifying intangible assets as depreciable property. By general rule the company depreciates assets that it uses in activities aimed at generating profit over a period of 12 months or more. Moreover, the value of such assets should be more than 40,000 rubles. (Clause 1 of Article 256 of the Tax Code of the Russian Federation). The useful life of a trademark is determined by a certificate issued for 10 years. After the expiration of the specified period, at the request of the copyright holder, the validity of the exclusive right to a trademark may be extended (Article 1491 of the Civil Code of the Russian Federation).

Accounting for expenses of the cost of a trademark whose registration has been refused

In the process of state registration of a trademark federal body executive branch By intellectual property conducts an examination of the designation declared as a trademark (Clause 1 of Article 1499 of the Civil Code of the Russian Federation, Order No. 32 dated 03/05/03 “On the Rules for drawing up, submitting and considering an application for registration of a trademark and service mark”). Based on the results of the examination, the trademark may be registered or the company may be denied registration of the trademark.

One of the reasons for such a refusal may be the identification of similarity of the trademark with previously registered ones. In particular, the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 2050/13 dated June 18, 2013, recognized as lawful the refusal of the organization “ROSHEN Confectionery Corporation” to state registration of a trademark of a combined designation with the verbal element “Singing Swallow”. The reason for this refusal was the similarity of the disputed trademark to the point of confusion with trademarks previously registered for the Rot Front company in relation to similar confectionery products.

Back in 2002, Moscow tax authorities spoke out against taking into account, when taxing profits, expenses associated with the creation of a trademark, the registration of which was denied to the company (letter of the Federal Tax Service of Russia for Moscow dated November 14, 2002 No. 26-12/55328).

Judicial practice shows that even now local tax authorities refuse to recognize such expenses for a company. Thus, in one of the cases, the company included in tax expenses attorney fees and costs associated with preliminary checks of trademarks and filing a trademark for registration. The inspectors found that Rospatent had decided to refuse to register the disputed trademark and assessed additional charges to the company. But the FAS Moscow District supported the organization in this dispute. Since the company's expenses have been confirmed primary documents(invoices, invoices, service delivery and acceptance certificates) and produced for the purpose of carrying out activities aimed at making a profit (resolution dated 10/01/08 No. KA-A40/9241-08).

The position of the court seems correct to the authors. After all, in order to recognize an expense when taxing profits, the intention to receive income is important. This is indirectly confirmed by the letter of the Ministry of Finance of Russia dated 05.21.10 No. 03-03-06/1/341, in which the department noted the following:

«<…>The validity of expenses taken into account in the tax base must be assessed taking into account the circumstances indicating the taxpayer’s intentions to obtain an economic effect as a result of real business or other economic activity.”

We were unable to find the official position of the financial department on the legality of accounting for income taxation of expenses for the creation of a trademark, the registration of which was refused. Therefore, by including such costs as tax expenses, the company takes a tax risk.

Reflection of trademark revaluation in tax accounting

No more than once a year cost intangible asset can be overestimated (clauses 16 and 17 of PBU 14/2007, approved by order of the Ministry of Finance of Russia dated December 27, 2007 No. 153n “On approval of the Accounting Regulations “Accounting for Intangible Assets” (PBU 14/2007)”).

At the same time, the Tax Code of the Russian Federation does not provide for either the possibility of changing the initial value of an intangible asset after the start of its depreciation, nor the revaluation or discounting of the value of intangible assets to market value (letter of the Ministry of Finance of Russia dated December 14, 2012 No. 03-03-06/1/659, dated December 13. 11 No. 03-03-06/1/819 and dated 12/28/09 No. 03-03-06/1/826). Consequently, for profit tax purposes, the organization does not take into account income and expenses from the revaluation of the trademark.

Depreciation of a trademark if the company ceases production of the product

If a company ceases production of products sold under a trademark, it turns out that it no longer uses such a trademark in activities aimed at making a profit. Consequently, the specified trademark no longer meets the criteria for classifying property as intangible assets (clause 3 of Article 257 of the Tax Code of the Russian Federation).

The accrual of depreciation stops from the 1st day of the month following the month when the object was removed from the depreciable structure for any reason (clause 5 of Article 259.1 of the Tax Code of the Russian Federation). In this case, the company has an amount of underaccrued depreciation on the trademark.

Company writing off depreciation in tax accounting linear method, includes such an amount in non-operating expenses (subclause 8, clause 1, article 265 of the Tax Code of the Russian Federation). If the company decides to depreciate the trademark “non-linearly”, it does not take into account the amount of underaccrued depreciation in tax accounting (clause 13 of Article 259.2 of the Tax Code of the Russian Federation). Such clarifications were given by the Russian Ministry of Finance in letter dated 08/05/11 No. 03-03-06/1/454.

Reinstatement of VAT when writing off goods on which the trademark is placed illegally

Products, labels and packaging on which a trademark is illegally placed are counterfeit (Clause 1 of Article 1515 of the Civil Code of the Russian Federation). The copyright holder has the right to demand that such goods be withdrawn from circulation and destroyed at the expense of the violator (Clause 2 of Article 1515 of the Civil Code of the Russian Federation). We were unable to find the official position of departments and materials judicial practice on the issue of the need to restore VAT on the cost of destroyed counterfeit goods.

Let us note that the Russian Ministry of Finance insists on the restoration of VAT on the value of property that the company ceases to use in activities subject to VAT. In particular, financiers draw such conclusions regarding:

— destruction of expired products (letters dated 07/05/11 No. 03-03-06/1/397 and dated 07/04/11 No. 03-03-06/1/387);

- shortages during inventory (letter dated 05/19/10 No. 03-07-11/186);

- damage to products due to fire (letter dated May 15, 2008 No. 03-07-11/194).

The courts usually support companies when such disputes arise. Since the Tax Code contains a closed list of circumstances when a company needs to restore tax previously accepted for deduction (clause 3 of Article 170 of the Tax Code of the Russian Federation). And such a circumstance as the destruction of counterfeit products is not included in this list.

Thus, according to the authors, the violator has the right not to restore the amount of tax paid earlier when purchasing a product that turned out to be counterfeit, which is destroyed at the request of the copyright holder. However, he will most likely have to defend his position in court.

Accounting for the costs of destroying counterfeit products

According to the Russian Ministry of Finance, the costs of destruction and expired products can be taken into account when taxing profits. But only if the liquidation of products after the expiration date is expressly provided for by law (letters dated 12/20/12 No. 03-03-06/1/711, dated 09/10/12 No. 03-03-06/1/477 and dated 05.03 .11 No. 03-03-06/1/121). In the event that the destruction of a product is caused by its obsolescence and illiquidity, the costs of its acquisition or creation do not form a tax expense for the company (letter of the Ministry of Finance of Russia dated 06/07/11 No. 03-03-06/1/332).

The withdrawal of counterfeit goods from circulation and their destruction is determined by the norms of civil legislation. The authors believe that in the situation under consideration, the company that sold the counterfeit product can also take into account the cost of such goods when calculating income tax. However, given the lack of clarification from the Russian Ministry of Finance and tax authorities, as well as judicial practice on this issue, the risk of claims from controllers is very high.

Russia's active integration into the world economy and the reduction of government protectionist measures are giving rise to fierce competition in various sectors of the economy. Manufacturers' efforts are aimed at conquering new markets. However, entering the market does not mean staying in it. One of the important factors in creating stable demand is emphasizing the advantages of a product and its individualization. Trademarks or service marks, also called brands, serve as tools for achieving these goals. Examples of successful use of a trademark are such well-known companies as Coca-Cola, Bosch, Mercedes and others. Once a trademark becomes recognizable, it can be used independently as an object civil rights to make a profit, which usually occurs on the basis of licensing agreements.

Trademarks perform another important function – they protect against counterfeiting. But in order to prevent competitors from using the brand, it must be registered. The article discusses the features of accounting and taxation of transactions with trademarks.

A trademark and service mark (hereinafter referred to as a trademark) are understood as designations used to individualize goods, work performed or services provided (hereinafter referred to as goods) of legal entities or individuals (Article 1 of the Federal Law “On Trademarks, Service Marks and Place Names” origin of goods" (hereinafter – Law No. 3520-1)). Verbal, figurative, dimensional and other designations or combinations thereof can be registered as trademarks.

Legal protection of a trademark in Russia is carried out on the basis of its state registration in the prescribed manner. The copyright holder has the right to use the trademark and prohibit its use by other persons.

A trademark should be distinguished from a trade name, the legal protection of which does not require mandatory filing or registration, regardless of whether it is part of a trademark ( Art. 8 "Convention for the Protection of Industrial Property").

The owner of the exclusive right to a trademark (right holder) can be a legal entity or an individual engaged in entrepreneurial activities. A certificate is issued for a registered trademark, which certifies the priority of the trademark, the exclusive right to it in relation to the goods specified in this document (Art. 3Law No. 3520-1).

A trademark certificate is issued by the federal executive body for intellectual property ( Art. 15Law No. 3520-1).

Please note: registration of a trademark is valid until the expiration of ten years, counting from the date of application to the federal executive body for intellectual property(clause 1 art. 16Law No. 3520-1).

Once a trademark is registered, the copyright holder has the right to dispose of it. Based on Art. 25, 26 Law No. 3520-1 There are two ways to exercise this right: assignment of a trademark and granting a license to use it. Moreover, the agreement on the assignment of a trademark and license agreement subject to mandatory registration in the federal executive body for intellectual property and without it are considered invalid ( Art. 27Law No. 3520-1). Registration of these agreements is carried out in accordance with by orders of Rospatent No. 64 And 141 .

Initial assessment of a trademark

Currently, accounting for intangible assets, including exclusive rights on trademarks, regulated Regulation No. 34n And PBU 14/2000. Moreover, the first normative document is applied to the extent that does not contradict the second ( Letter of the Ministry of Finance of the Russian Federation dated August 23, 2001 No. 16-00-12/15).

When a trademark is accepted for accounting, its value consists of actual expenses for purchase, excluding VAT and other refundable taxes (except for cases provided for by the legislation of the Russian Federation) ( clause 6 PBU 14/2000).

For the purpose of calculating profit, the initial cost of a trademark is determined similarly ( clause 3 art. 257 Tax Code of the Russian Federation), however this does not mean that for the purposes of accounting it is always equal to the cost when calculating profit. Differences may be in insurance costs, interest on loans and borrowings, amount and exchange rate differences (in tax accounting, these costs are not included in the initial cost ( clause 3 art. 263,pp. 2, 5 ,6 clause 1 art. 265 Tax Code of the Russian Federation)).

Example 1.

The Alpha organization developed a trademark in January 2006. Development costs amounted to 35,000 rubles. In February 2006, Alpha filed a trademark application. The trademark certificate was received in June 2006, the cost of obtaining it amounted to 25,000 rubles.

In reality, not everything is as simple as in the example considered. There is no consensus on the issue of reflecting costs associated with the international registration of a trademark already registered in Russia. In such situations, some experts understand an intangible asset as exclusive right (and not the image of the trademark itself) ( clause 4 PBU 14/2000), therefore, upon its international registration, an independent accounting object arises. Others argue that these costs should be recognized as expenses for ordinary activities. This is precisely the opinion expressed by the Ministry of Finance in Letter dated March 29, 2005 No. 07-05-06/91, supporting it with the following arguments: The accounting unit for intangible assets is the inventory item. The inventory object of intangible assets is considered to be a set of rights arising from one patent, certificate, assignment of rights, etc. The main feature by which one inventory item is identified from another is its performance of an independent function in the production of products, performance of work or provision of services, or use for the management needs of the organization. At the same time, the value of intangible assets at which they are accepted for accounting is not subject to change, except in cases established by law. Russian Federation.

The author of the article was not convinced by the Ministry of Finance’s explanations. However, this does not mean that the taxpayer cannot benefit from this letter; on the contrary, based on its provisions, the costs of international registration of trademarks can be written off as expenses at a time, without fear of tax sanctions, since compliance with written explanations of the authorized body excludes the person’s liability for tax offenses ( Art. 111 Tax Code of the Russian Federation).

Use of a trademark

Having registered a trademark in the prescribed manner, an organization can begin to use it, which is usually carried out in two ways: use for its own needs and granting rights to use. Let's take a closer look at each of them.

Use for your own needs

When using a trademark in the production of products, performance of work or provision of services, or for the management needs of an organization, its value is repaid by calculating depreciation using one of the methods established paragraph 15PBU 14/2000(linear, declining balance or write-off of cost in proportion to the volume of products (works)). For profit tax purposes, linear and non-linear depreciation methods are used ( clause 1 art. 259 Tax Code of the Russian Federation).

Example 2.

Let's continue the conditions of example 1. Depreciation is calculated both in accounting and tax accounting using the linear method. Account 05 “Amortization of intangible assets” is not applicable for this group of assets.

In accounting, depreciation operations are reflected as follows:

<**>The posting is drawn up after the complete write-off of the trademark, in the event of an extension of the term of its use, on the basis of an application for extension of the validity period of the trademark registration ( clause 2 art. 16 of Law No. 3520-1).

When extending the validity period of a trademark registration, an organization is required to pay a fee in the amount of 15,000 rubles. ( Art. 44 Law 3520-1,pp. "k" clause 2 of the Regulations on duties). Sometimes tax authorities regard this payment as the cost of an intangible asset, which is not subject to one-time inclusion in expenses and should be taken into account in reducing the tax base during the period of use of the trademark in production, but this position does not find support in judicial authorities. Yes, FAS VVOv Resolution dated November 26, 2004 No. A11-3274/2004-K2-E-2706 indicated that the fee for extending the validity period of a trademark registration is a periodic payment, therefore it is taken into account for profit tax purposes as part of other expenses on the basis pp. 37 clause 1 art. 264 Tax Code of the Russian Federation. In accounting, questions about these costs do not arise - these are deferred expenses ( clause 65 of Regulation No. 34n), which must be taken into account for 10 years - the new validity period legal protection trademark.

Example 3.

The Gamma organization has exclusive rights to the trademark. The period of validity of its legal protection ends on 07/01/06. In April 2006, Gamma paid a fee in the amount of 15,000 rubles. and submits an application to extend the validity period of the trademark registration. The monthly depreciation rate, written off on a straight-line basis and reflected on account 05, is 300 rubles. For income tax purposes, the costs of the paid duty are written off as a lump sum.

The following entries will be made in accounting:

<*>This entry was drawn up due to the fact that in tax accounting expenses are written off at a time, but in accounting they will be written off over 10 years, therefore, according to clause 15 PBU 18/02 a deferred tax liability has arisen.

This approach is not the only possible one. According to clause 1 art. 272 Tax Code of the Russian Federation expenses are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) other form of payment. Consequently, for the purpose of calculating profit, an organization has the right to take into account expenses in the same order as in accounting; naturally, in this case there is no need to apply PBU 18/02.

Providing a trademark for use

We have already mentioned the licensing agreement, payments under which are divided into lump sum (one-time) and royalties (periodic). However, this is not the only way to transfer rights to use a trademark. There is also a transfer of rights to use a trademark as part of set of rights under a commercial concession agreement (franchise agreement) ( Ch. 54 Civil Code of the Russian Federation). But for accounting and taxation this division is not significant.

Accounting for transactions related to the granting of the right to use intangible assets is regulated clauses 24 – 26 PBU 14/2000. The issue of providing intangible assets for use has already been covered on the pages of the magazine, so we will not dwell on this and move on to taxation.

Value added tax . According to pp. 1 clause 1 art. 146 Tax Code of the Russian Federation The object of VAT taxation is the sale of goods (work, services) on the territory of the Russian Federation. If both parties to the agreement for the use of a trademark are Russian organizations, then the imposition of VAT does not cause any particular difficulties, since for tax purposes such relationships are considered the sale of services. However, often the granting of the right to use a trademark occurs with the participation of a foreign partner. In order to most fully consider transactions involving the use of trademarks in this case, let us recall some norms of tax legislation.

When determining the place of sale of works (services) for the purpose of calculating VAT, one should be guided by pp. 4 paragraphs 1 art. 148 Tax Code of the Russian Federation, according to which when transferring, granting patents, licenses, brands, copyright or other similar rights The place of activity of the buyer is considered to be the territory of the Russian Federation in the event of the actual presence of the buyer of the works (services) specified in this subparagraph on the territory of the Russian Federation on the basis of state registration of an organization or individual entrepreneur.

If from 01/01/06 the situation with VAT taxation of license payments does not cause any particular difficulties, then before this date there is no clarity on this issue. Therefore, let’s return to the previous version of the law, especially since this provision will be relevant for many more years. Until the specified date in para. 3 pp. 4 paragraphs 1 art. 148 Tax Code of the Russian Federation it was about transfer of ownership or assignment of patents, licenses, trademarks, copyrights or other similar rights. Actually, the difficulty lay in the ambiguity of the wording of the law, which gave rise to different approaches to the assessment of VAT when transferring rights under an exclusive license, even among regulatory authorities. For example, the Ministry of Taxes and Taxes of the Russian Federation in Letter dated May 17, 2004 No. 03-1-08/1222/17 explains: if agreements are concluded providing for the right to use intellectual property, under the terms of which the owner of the right remains the same, but he allows them usage to another person within certain limits, alienation of rights (transfer of ownership, assignment) does not occur. …when sold by a foreign licensor (not registered as a taxpayer in tax authorities Russian Federation) services for the provision of rights to use intellectual property without alienation of rights (transfer of ownership, assignment), the place of implementation of its activities, and, consequently, the place of sale of these services is not the territory of the Russian Federation. In this case, the sale of these services is not subject to value added tax in the Russian Federation.

The Ministry of Finance adhered to a less acceptable position for the taxpayer, which is set out in Letter dated May 11, 2005 No. 03-04-08/116: an exclusive license provides for the alienation from the licensor of the right to use the object of the license agreement in the part transferred to the licensee, that is, ownership of the object of the license agreement within the limits determined by this agreement, passes from licensor to licensee . At the same time, financiers argue that Letter№ 03-1-08/1222/17 the procedure for acquiring non-exclusive rights is explained (apparently, the Ministry of Finance was not convinced by the phrase from the letter of the Ministry of Taxes and Taxes: use within certain limits , which allows us to talk about any licenses (exclusive and non-exclusive)).

Over time, the Ministry of Finance did not change its point of view and Letter dated January 18, 2006 No. 03-04-08/12 insists on paying VAT in a similar situation.

The author is closer to the position set forth by the Ministry of Taxation, and the point is not only in the natural and understandable desire of the taxpayer to fulfill as few tax obligations as possible, but also in the approach proposed by the Ministry of Finance. The fact is that transfer of ownership or assignment means the termination of property rights from one owner and the emergence of it from another, which cannot be said about the legal relationship between the licensor and the licensee. Using the approach of the Ministry of Finance, when transferring ownership of the object of the license agreement, we move to the plane of intangible assets. But in civil legislation the right of use is not recognized as an object of intellectual property. Moreover, as mentioned above, the exclusive right to a trademark is recognized as an intangible asset. Thus, according to the author, the position of the Ministry of Finance, set out in Letter№ 03-04-08/116 , unfounded. As indirect confirmation of this we can cite Resolution of the Federal Antimonopoly Service ZSO dated 11.05.06 No. A67-9762/05, in which the arbitrators found unfounded the tax inspectorate’s arguments that the acquisition of exclusive rights under a license agreement is equivalent to the acquisition of an intangible asset.

But let’s return to the present and continue to consider the imposition of VAT on transactions involving the transfer by a foreign partner to a Russian organization of the right to use a trademark. According to Art. 161 Tax Code of the Russian Federation when Russian organizations purchase work or services on the territory of the Russian Federation from foreign organizations that are not registered with the tax authorities as taxpayers, VAT in Russian budget paid by organizations that purchase services and act as tax agents. Moreover, the tax withheld from a foreigner is transferred to the budget simultaneously with the transfer of money to the counterparty ( clause 4 art. 174 Tax Code of the Russian Federation).

Sometimes the licensee pays the entire amount when paying license fees, without deducting VAT from it. In such cases, according to the Ministry of Finance, the VAT paid should be classified as other expenses on the basis pp. 1 clause 1 art. 264 Tax Code of the Russian Federation (Letter of the Ministry of Finance of the Russian Federation dated May 19, 2006 No. 03-03-04/1/144). However, this approach is not the only possible one, for example, FAS VVO in Resolution dated 09/05/05 No. A29-276/2005a came to the conclusion that VAT paid from own funds can be deducted.

In the event of a transfer of the right to use a trademark by a Russian organization to a foreign partner, no VAT liability arises ( pp. 4 clause 1.1 art. 148 Tax Code of the Russian Federation).

income tax . Typically, the provision of a trademark is not an activity of the organization. In this case, payments under license agreements are included in non-operating income in accordance with clause 5 art. 250 Tax Code of the Russian Federation. The procedure for recognizing income depends on whether the contract is fixed-term or open-ended, on the nature of the payment (lump-sum, royalty), on the method of recognizing income and expenses (accruals, cash).

If the licensor determines income and expenses on an accrual basis, then by virtue of pp. 3 p. 4 art. 271 Tax Code of the Russian Federation the remuneration received for the right to use a trademark is recognized at the time of making payments, in accordance with the terms of concluded agreements, or presenting to the taxpayer documents serving as the basis for calculations, or on the last day of the reporting (tax) period. If the cash method is used, then based on clause 2 art. 273 Tax Code of the Russian Federation remuneration is recognized on the day of receipt of funds into bank accounts and (or) the cash desk, receipt of other property (work, services) and (or) property rights, as well as repayment of debt to the taxpayer in another way. All this is true for royalties.

When applying the accrual method, a lump sum payment is recognized in tax accounting in the following order: if the duration of the agreement is not determined, then it is expensed at the time of provision for use; if determined, income is recognized evenly over the term of the agreement ( clause 2 art. 271 Tax Code of the Russian Federation).

The procedure for recognizing expenses in connection with the acquisition of the right to use a trademark is similar to the procedure for recognizing income. IN Letter of the Ministry of Finance of the Russian Federation dated May 25, 2005 No. 03-03-01-04/2/97 clarifies that, in accordance with pp. 37 clause 1 art. 264 Tax Code of the Russian Federation other expenses associated with production and sales, in particular, include periodic (current) payments for the use of trademark rights: according to Art. 272 Tax Code of the Russian Federation When recognizing expenses using the accrual method, a fixed one-time payment for the right to use a trademark is evenly included in other expenses during the period of use of the specified right, which is specified in the license agreement (commercial concession agreement).

Termination of exclusive rights to a trademark

According to Art. 25Law No. 3520-1The exclusive right to a trademark may be transferred by the copyright holder to another legal entity or individual carrying out entrepreneurial activities under an agreement on the transfer of the exclusive right to a trademark (agreement on the assignment of a trademark). As a result of the execution of such an agreement, all exclusive rights to an object of intellectual property are transferred to the new owner, therefore, the disposal of intangible assets must be reflected in both accounting and tax accounting.

In the accounting literature, there is no uniform approach to the issues of taxation of profits upon disposal of intangible assets. Some experts believe that the residual value of an intangible asset, calculated according to the rules for determining the residual value of fixed assets, can be taken into account as an expense ( pp. 1 clause 1 art. 268 Tax Code of the Russian Federation). Others argue that since the Tax Code of the Russian Federation does not contain a direct rule on the residual value of an intangible asset, reduce tax base the residual value of an intangible asset is not allowed, and upon sale, the organization has the right to reduce income by the purchase price of the asset ( pp. 2 p. 1 art. 268 Tax Code of the Russian Federation).

The author adheres to the first point of view, since, in accordance with pp. 1 clause 1 art. 268 Tax Code of the Russian FederationWhen selling depreciable property, the taxpayer has the right to reduce income from such transactions by the residual value of the depreciable property, determined in accordance withWithclause 1 art. 257 Tax Code of the Russian Federation. The internal contradiction of this norm is obvious: a trademark is an intangible asset and is included in the depreciable property ( clause 1 art. 256 Tax Code of the Russian Federation). However, in clause 1 art. 257 Tax Code of the Russian Federation It only talks about depreciation of fixed assets.

This fact is due to clause 7 art. 3 Tax Code of the Russian Federation cannot prevent the inclusion of the residual value of intangible assets as expenses. The argument that since the concept of residual value of intangible assets is not regulated by law, to apply pp. 1 clause 1 art. 268 Tax Code of the Russian Federation impossible, unreasonable. According to clause 1 art. 11 Tax Code of the Russian Federationinstitutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation used in this Code are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by this Code. Following this approach, we turn to clause 57 of Regulation No. 34n, according to which intangible assets are reflected in balance sheet at residual value, i.e. according to the actual costs of acquisition, production and costs of bringing them to a state in which they are suitable for use for the planned purposes, minus accrued depreciation.

The inconsistency of the second point of view can be confirmed by a quotation from clause 5 art. 252 Tax Code of the Russian Federation: for the purposes of this chapter, amounts reflected as taxpayers' expenses are not subject to re-inclusion in taxpayer expenses.. That is, by writing off the purchase price of an asset as expenses, we will take into account the amount of accrued depreciation (of course, if it was previously accrued) as expenses.

Example 4.

The Beta organization had exclusive rights to the trademark. In March 2006, she entered into a trademark assignment agreement. According to the agreement, “Beta” should receive 70,000 rubles. (excluding VAT). In July, this agreement was duly registered. Both in accounting and tax accounting, the initial cost of the trademark was 45,000 rubles; at the time of registration, depreciation in the amount of 15,000 rubles was accumulated on account 05.

In accounting, the disposal of intangible assets is reflected by the following entries:

<*>Sub-account “Retirement of intangible assets”.

<**>VAT subaccount.

In conclusion, let us draw attention to such a basis for writing off intangible assets as early termination of legal protection due to non-use of a trademark. According to clause 3 art. 22Law No. 3520-1legal protection of a trademark may be terminated early in relation to all or part of the goods due to non-use of the trademark continuously for any three years after its registration. In this case, the taxpayer will hardly be able to prove the economic justification of the costs incurred and, therefore, reduce the tax base for income tax ( clause 49 art. 270 Tax Code of the Russian Federation).

Law of the Russian Federation dated September 23, 1992 No. 3520-1 “On trademarks, service marks and appellations of origin of goods.”

The Convention for the Protection of Industrial Property was concluded in Paris on March 20, 1883. The USSR signed it on 10/12/67.

Order of Rospatent dated April 29, 2003 No. 64 “On the rules for registering agreements on the transfer of the exclusive right to an invention, utility model, industrial design, trademark, service mark, registered topology of an integrated circuit and the right to use them, full or partial transfer of the exclusive right to a program for electronic computers and a database."

Order of Rospatent dated July 10, 1998 No. 141 “On making decisions on the registration of agreements on the assignment of a trademark, licensing agreements on granting the right to use a trademark and on the cancellation of the registration of a trademark.”

Regulations on accounting and financial statements in the Russian Federation, approved. By Order of the Ministry of Finance of the Russian Federation dated July 29, 1998 No. 34n.

Accounting Regulations “Accounting for Intangible Assets” PBU 14/2000, approved. By order of the Ministry of Finance of the Russian Federation dated October 16, 2000 No. 91n.

In accordance with clause 21 of PBU 14/2000, depreciation charges for intangible assets are reflected in accounting either by accumulating the corresponding amounts in a separate account, or by reducing the initial cost of the object.

Regulations on fees for patenting inventions, utility models, industrial designs, registration of trademarks, service marks, appellations of origin of goods, granting the right to use appellations of origin of goods, approved. Decree of the Government of the Russian Federation dated August 12, 1993 No. 793.

Accounting Regulations “Accounting for Income Tax Calculations” PBU 18/02, approved. By Order of the Ministry of Finance of the Russian Federation dated November 19, 2002 No. 114n.

See the article by E. V. Kulikova “Future expenses. What should I pay attention to? in the magazine " Current issues accounting and taxation", No. 13, 2006, p. 52.

Based on Art. 87 of the Tax Code of the Russian Federation, a tax audit can only cover three calendar years of activity of the taxpayer, fee payer and tax agent immediately preceding the year of the audit.

A.V. Solomakha, accounting and taxation expert

A trademark is the face of an organization

Accounting and tax accounting

Nowadays, trademarks are used everywhere. They help consumers differentiate goods and services from similar ones. And copyright holder organizations use them precisely to attract the attention of buyers.

Verbal, figurative and combined designations can be registered as a trademark. The trademark is subject to special registration with the Federal Service for Intellectual Property, Patents and Trademarks (hereinafter referred to as Rospatent) Articles 1477, 1481 of the Civil Code of the Russian Federation.

But recognition in the market does not come for free. From this article you will learn how to take into account a trademark if your organization decides to acquire one.

We accept for accounting

For accounting purposes, a trademark is an intangible asset (IMA), regardless of its value (less or more than 40,000 rubles) clause 4 PBU 14/2007. In tax accounting:

• <если>the cost of a trademark is more than 40,000 rubles, then it is recognized as an intangible asset clause 1 art. 256, paragraph 3 of Art. 257 Tax Code of the Russian Federation;
• <если>the cost of a trademark is 40,000 rubles. or less, then it is included in expenses immediately subp. 3 p. 1 art. 254 Tax Code of the Russian Federation; Letter of the Federal Tax Service dated November 1, 2011 No. ED-4-3/18192.

To recognize an intangible trademark for accounting and tax accounting you must have a certificate issued by Rospaten t subp. “b” clause 3 PBU 14/2007; clause 3 art. 257 Tax Code of the Russian Federation; Art. 1477 Civil Code of the Russian Federation; Letter of the Ministry of Finance dated March 25, 2011 No. 03-03-06/2/47.

Do it yourself or buy it

When creating a trademark, its initial cost includes, in particular, the following expenses: pp. 6, 7 PBU 14/2007; clause 1 art. 256, paragraph 3 of Art. 257 Tax Code of the Russian Federation:

• payment for the work of third-party specialists developing a trademark. Input VAT on these works (services) is deductible in the usual manner. Articles 171, 172 of the Tax Code of the Russian Federation;
• state fees for registration of an application for registration of a trademark, for examination of the application, for registration of a trademark, etc. Government Decree No. 781 dated September 15, 2011;
• remuneration paid to a patent attorney involved in registering a trademark;
• amounts paid for information and consulting services (for example, for conducting a preliminary check of a trademark for similarity to previously registered ones before submitting documents for registration).

The initial cost of the acquired mark includes the amount paid under the agreement on the alienation of exclusive rights, state duties paid upon acquisition, remuneration paid to the intermediary organization if the trademark is acquired through it, amounts paid for information and consulting services related to the acquisition of the trademark. clause 8 of PBU 14/2007; clause 3 art. 257 Tax Code of the Russian Federation.

All expenses associated with the creation (purchase) of a trademark are reflected in accounting as a debit to account 08 “Investments in non-current assets”, sub-account “Acquisition of intangible assets”, in correspondence with settlement accounts.

A trademark is accepted for registration on the date of receipt of a certificate certifying the exclusive right to it. clause 6 PBU 14/2007; clause 1 art. 1488 Civil Code of the Russian Federation; clause 10.1.4 of the Order of the Ministry of Education and Science dated October 29, 2008 No. 321.

In general, the initial cost of homogeneous intangible assets in accounting can be revalued to market value formed according to active market data clause 17 PBU 14/2007. But each trademark is individual (original), and there is no active market for them. In this regard, it is problematic to re-evaluate them. After all, we do not have enough data for a reliable assessment. Therefore, trademarks are usually recorded at historical cost.

Depreciation and useful life

PBU 14/2007 does not establish a cost criterion for recognizing intangible assets in accounting. But the organization itself can establish such a criterion by determining the level of materiality, which is calculated on the basis of its financial indicators. The level of materiality must be fixed in accounting policy. And if the costs of acquiring a trademark are below the level of materiality, then they can be written off in accounting as a lump sum.

If the level of materiality is not established, then in accounting the cost of the trademark is repaid by monthly depreciation and amortization. clause 23 PBU 14/2007.

In tax accounting, if the cost of a trademark is more than 40,000 rubles. depreciation is calculated monthly clause 3 art. 272 Tax Code of the Russian Federation.

The useful life of a trademark is determined based on the validity period of the certificates clause 26 PBU 14/2007; clause 2 art. 258 Tax Code of the Russian Federation. It is usually issued for 10 years and is valid from the date of filing the application for registration. clause 1 art. 1491 Civil Code of the Russian Federation.

The period during which your trademark must be registered is not established by current legislation. In practice, registration can last more than a year, since various examinations(for example, formal examination (about 1 month), checking the compliance of the list of goods and services (about 2 months), examination of a trademark (about 12 months), etc.).

Example. The procedure for calculating depreciation taking into account the period of registration of a trademark

/ condition / The cost of the trademark is 153,000 rubles. (excluding VAT). The registration application was submitted in October 2012, and the trademark certificate was received in April 2014. Thus, the trademark registration period is 18 months.

/ solution / Let's calculate the SPI taking into account the registration period: 120 months. (10 years x 12 months) – 18 months. = 102 months

Since May 2014, the organization has monthly recorded depreciation in the amount of 1,500 rubles. (RUB 153,000 / 102 months).

The useful life of a trademark must be checked annually clause 27 PBU 14/2007. If it turns out that the SPI will change significantly (for example, only 5 years will be used instead of 10), then it will be necessary to recalculate the depreciation rate in accounting clause 4 PBU 21/2008.

Since in tax accounting the depreciation rate is not subject to change, this will lead to the emergence of temporary differences in accounting clause 14 PBU 18/02.

You can depreciate a trademark in one of the following ways:

• for accounting purposes - the linear method, the reducing balance method, the method of writing off value in proportion to the volume of output (work) clause 28 PBU 14/2007;
• for tax accounting purposes - linear and nonlinear methods clause 1 art. 259 Tax Code of the Russian Federation.

The method of calculating depreciation is established by the organization itself and enshrined in its accounting policies. But in order to avoid differences between accounting and tax accounting, it is better to use the linear method.

Depreciation begins to accrue from the 1st day of the month following the month in which the trademark began to be used clause 4 art. 259 Tax Code of the Russian Federation. But it is necessary to remember that it is possible to register a trademark and use it in your activities only if you have a certificate.

If you have not started using a registered trademark in your business, then the costs of its creation (purchase) cannot be accepted for profit tax purposes. Letter of the Ministry of Finance dated November 8, 2011 No. 03-03-06/1/721.

The law does not prohibit the use of a trademark before its registration. But you must remember that this is risky. After all, if your trademark has already been registered by another copyright holder or is similar to someone else’s previously registered one, then the use of such a trademark may entail not only administrative Art. 14.10 Code of Administrative Offenses of the Russian Federation and civilian Art. 1515 Civil Code of the Russian Federation responsibility, but also criminal clause 1 art. 180 of the Criminal Code of the Russian Federation.

Or someone may like your trademark - and it will be used not only by you. In this case, your organization will suffer losses, and you will have no chance to assert your rights under an unregistered mark.

The exclusive right to a trademark can be renewed every 10 years and this can be done an unlimited number of times clause 2 art. 1491 Civil Code of the Russian Federation.

After the first 10 years, the cost of the trademark will be fully expensed and its residual value will be zero. If you want to extend the validity of the exclusive right, then you do not need to write off the trademark in accounting. It will still be listed, but with zero value. In this case, you will include the state duty paid in connection with the extension of the term of use of the trademark as current expenses. pp. 8, 9, 16 PBU 14/2007; Letter of the Ministry of Finance dated August 12, 2011 No. 03-03-06/1/481; subp. 1, 49 clause 1 art. 264 Tax Code of the Russian Federation.

We under-depreciated and are already writing it off

If an organization ceases to use a trademark in its activities before the end of the joint venture, then the under-depreciated cost of the trademark in accounting is written off as other expenses. clause 34 PBU 14/2007.

In tax accounting, the under-depreciated cost of a trademark:

• <если>depreciation was calculated using the straight-line method - written off as non-operating expenses at a time subp. 8 clause 1 art. 265 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 05.08.2011 No. 03-03-06/1/454;
• <если>depreciation was accrued in a non-linear way - continues to be repaid by accruing depreciation in that depreciation group, which originally included the trademark clause 13 art. 259.2 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated February 24, 2014 No. 03-03-06/1/7550.

Not just for yourself

The copyright holder organization can use the trademark not only itself. It may transfer the right to use it to other organizations for a certain period or without defining it on the basis of a license agreement. Such an agreement is drawn up in writing and is subject to state registration with Rospatent. If these conditions are not met, the contract will be considered invalid. Art. 1489, paragraph 2 of Art. 1235 Civil Code of the Russian Federation; clause 37 PBU 14/2007.

To register an agreement with Rospatent, you must pay a state fee. If, under the terms of the contract, the state duty is paid by the copyright holder, then he makes the following entries in the accounting.

In this case, all rights to the trademark remain with the original copyright holder. Therefore, the trademark continues to be listed on his balance sheet in a separate sub-account (for example, “Intangible assets transferred for use to third parties”) and is depreciated in the usual manner. clause 38 PBU 14/2007; subp. 1 clause 1 art. 265 Tax Code of the Russian Federation.

For the transfer of a trademark for use, the copyright holder receives a one-time payment or periodic payments. VAT must be calculated from them clause 2 art. 153 Tax Code of the Russian Federation; Letter of the Ministry of Finance dated November 30, 2011 No. 03-07-11/330. When calculating income tax, income from the transfer of rights to a trademark is recognized subp. 3 p. 4 art. 271 Tax Code of the Russian Federation:

• <или>on the date of settlements in accordance with the terms of the agreement;
• <или>on the date of issuing documents to the counterparty (for example, invoices for payment);
• <или>on the last day of the reporting (tax) period.

Example. Reflection of license payments received for the use of a trademark

/ condition / The right to use a trademark is transferred under a contract for 3 years. The license fee is paid:

• <или>monthly in the amount of 5,000 rubles, including VAT 762.71 rubles;
• <или>lump sum in the amount of 180,000 rubles. (RUB 5,000 x 36 months), including VAT RUB 27,457.63.

/ solution / Reflection in accounting of license payments.

Selling a trademark

In this case, an agreement on the alienation of the exclusive right is concluded, which is drawn up in writing and is subject to state registration with Rospatent. clause 1 art. 1490 Civil Code of the Russian Federation. On the date of registration of the agreement:

• income from the sale of the exclusive right to a trademark is recognized clause 7 PBU 9/99; clause 1 art. 249 Tax Code of the Russian Federation;
• The residual value of the trademark and the state duty paid for registration of the agreement (if payment is assigned to the copyright holder) are taken into account as part of other expenses. clause 11 PBU 10/99; clause 1 art. 268 Tax Code of the Russian Federation.

VAT must be calculated from the cost of the sold trademark. subp. 1 clause 1 art. 146 Tax Code of the Russian Federation.

Let's take it for a while

A trademark can not only be acquired or created, but also received for temporary use under a license or sublicense agreement, which is also subject to registration with Rospatent. If the contract is not registered, it is considered invalid. clause 2 art. 1235 Civil Code of the Russian Federation.

In this case, there is no transfer of ownership. Therefore, to account for a trademark received for temporary use, you can enter an off-balance sheet account “Intangible assets received for temporary use” in accounting.

License payments for the use of a trademark are expenses of the reporting period and are reflected in accounting as follows: clause 39 PBU 14/2007.

Income tax. License payments for the right to use a trademark are recognized for the purpose of calculating income tax as part of production and sales expenses.

It may happen that in response to your application for trademark registration, you will receive a decision from Rospatent to refuse trademark registration.

In this case, the costs of creating (purchasing) a trademark that has not been registered are reflected in accounting as part of other expenses on the date of receipt of the specified decision pp. 11, 16 PBU 10/99; clause 2 art. 1499 Civil Code of the Russian Federation.

For profit tax purposes, these expenses are included in non-operating expenses. True, this may cause claims from the tax authorities Resolutions of the Federal Antimonopoly Service of the Moscow Region dated August 30, 2010 No. KA-A40/10012-10, dated October 1, 2008 No. KA-A40/9241-08. In their opinion, such expenses are unjustified, since they are not aimed at generating income for the organization.

From a letter to the editor:

"Our organization has been producing soft toys. Since the products have already become quite well-known and we receive a minimum amount of critical feedback about them, and also in order for our products to become more recognizable on the market (acquired a corporate identity), incl. and abroad, we decided to acquire our own trademark, which was developed by a third-party organization on our order.

The organization filed an application for trademark registration and examination on January 12, 2010. The trademark registration certificate was received 12 months later - January 12, 2011. The received certificate indicates the validity period of the trademark registration - 10 years from the date of filing the application, i.e. e. from January 12, 2010

Since we have never taken trademarks into account before, I had a number of questions:

1) how to capitalize a trademark in accounting?

2) what is the procedure for calculating depreciation on a trademark?

3) is it necessary to calculate depreciation for the 12 months when the specified object underwent the examination and registration procedure?

Sincerely, Valentina Vasilievna"

Dear Valentina Vasilievna, based on the current legislation, we will examine your questions. I immediately draw your attention to what to consider questions asked we'll be at the base regulatory documents, which have continued to operate since 2010. In 2010, they promised that from January 1, 2011, changes should occur in the accounting of intangible assets. But so far no changes in regulations were not published.

Trademark registration is a necessity for organizations maintaining a corporate identity

Verbal designations can be registered as trademarks, incl. proper names, color combinations, alphabetic, digital, pictorial, three-dimensional designations, including the shape of the product or its packaging, as well as combinations of such designations. Other designations may be registered as trademarks in cases provided for legislative acts RB.

A trademark can be registered in any color or color combination (Article 1017 Civil Code RB (hereinafter - GC)).

Trademark is an intangible asset

A trademark registered by your organization in accounting should be accounted for as an intangible asset.

The following assets are recognized as intangible assets for accounting purposes:

Identifiable (having characteristics that distinguish this object from others, including similar ones) and not having a material (physical) form;

Used in the activities of the organization;

Capable of bringing future economic benefits to the organization;

The useful life of which exceeds 12 months;

The cost of which can be measured with sufficient reliability, i.e. available documentary evidence cost, as well as costs associated with their acquisition (creation);

If there are documents confirming the rights of the copyright holder.

In the absence of any of the specified criteria, the costs incurred are not recognized as intangible assets and are taken into account as expenses of the organization (clause 2 of the Regulations on accounting of intangible assets, approved by Resolution of the Ministry of Finance of the Republic of Belarus dated December 12, 2001 No. 118).

As you probably noticed, if at least one of the above criteria is not met, the costs incurred cannot be recognized as intangible assets. But, judging by your request, all criteria are met.

Legal protection of a trademark on the territory of the Republic of Belarus is carried out on the basis of its registration with the patent authority with the issuance of a certificate certifying the priority of the trademark, the exclusive right of the owner to the trademark in relation to the goods specified in the certificate, and contains an image of the trademark (clauses 1, 3 Art. 1017 Civil Code).

The costs of registering a trademark only from January 12, 2011 should be accounted for as an intangible asset

A trademark in the situation under consideration can be recognized as an intangible asset for accounting purposes only from the moment the certificate of its registration is issued, i.e. from January 12, 2011. From January 12, 2010 to January 12, 2011, the costs of its registration should have been taken into account as investments in non-current assets on the same account 08 “Investments in non-current assets”.

Registration of a trademark is valid for 10 years from the date of receipt of the application by the patent authority (Article 1020 of the Civil Code). That is, in the case under consideration - from January 12, 2010.
The following entries should be made in the accounting records:

In 2010:

D-t 08 - K-t 60 (76)

The amount of all costs for creating a trademark;

In January 2011:

Dt 04 - Kt 08

Implement a trademark as an intangible asset;

Since February 2011:

Dt 20, 26, 44 - Kt 05

Record depreciation monthly.

Thus, accrue depreciation on a trademark from the 1st day of the month following the month of its commissioning, i.e. since February 2011
The service life for it should be set in accordance with the service life remaining until the end of the registration, i.e. 108 months (120 months - 12 months), where:

120 months = 10 years × 12 months;

12 months - the period from the date of receipt of the application by the patent authority (January 12, 2010) until the date of issue of the trademark registration certificate (January 12, 2011).

The depreciation rate will be calculated using one of the following options: 12 / 108 × 100% = 11.111 111% or 1 / 9 × 100% = 11.111 111%.

Note. The choice of option for calculating depreciation based on the monthly norm or amount is fixed in the accounting policy of the organization. During the reporting year, the selected option for calculating depreciation is not subject to revision.

The depreciation rate is calculated as a percentage with 2 decimal places, and in case of computer processing of information - with no less than 6 decimal places (clause 31 of the Instructions on the procedure for calculating depreciation of fixed assets and intangible assets, approved by the resolution of the Ministry of Economy, the Ministry of Finance and the Ministry of Construction and Architecture of the Republic of Belarus dated 27.02 .2009 No. 37/18/6 (hereinafter referred to as Instruction No. 37/18/6)).

Put the trademark into operation according to the act

The received certificate is the basis for putting the intangible asset into operation and drawing up the standard form NA-1 (Appendix 14 to the Resolution of the Ministry of Finance of the Republic of Belarus dated December 8, 2003 No. 168 “On approval of standard forms of primary accounting documents for accounting for fixed assets and intangible assets and Instructions on the procedure filling out standard forms of primary accounting documents for accounting of fixed assets and intangible assets").

Your organization must accept a trademark for registration on the basis of an intangible asset acceptance certificate (Form NA-1).

Calculate depreciation only using the straight-line method.

Depreciation is calculated using linear and non-linear methods for newly commissioned intangible assets from the 1st day of the month following the month of their commissioning. Accrual of depreciation on intangible assets in a productive manner begins from the date of their commissioning (clause 34 of Instruction No. 37/18/6).

An organization has the right to establish a non-linear method of calculating depreciation in relation to intangible assets (with the exception of brand names and trademarks). Thus, depreciation on trademarks is calculated only on a straight-line basis (clause 41 of Instruction No. 37/18/6).

With the linear method, the annual (monthly) amount of depreciation is determined by multiplying the depreciable cost by the calculated annual (monthly) depreciation rate or by dividing the depreciable cost by the established standard service life (useful life) in years (months) (clause 39 of Instruction No. 37 /18/6).

The useful life is equal to the standard service life

The standard service life of intangible assets and the assumed useful life of those used in entrepreneurial activity objects of intangible assets are determined based on the time of their use (service life), established by patents, certificates, licenses, relevant agreements and other documents confirming the rights of the copyright holder. If they do not indicate the time of use (service life), these terms are established by decision of the commission through the individualization of participants in the civil circulation of goods and services (brand names, trademarks) for a period of up to 40 years, but not more than the life of the organization (clause 20 of the Instructions No. 37/18/6).

I hope that my explanations will help you, dear Valentina Vasilievna.

Sincerely yours, Olga Pavlovna

How to account for the costs of registering a trademark

Trademarks can be pictorial, verbal, combined, sound, three-dimensional and have different color schemes (Article 1482 of the Civil Code of the Russian Federation). The mark can be developed and registered independently or purchased from a third party, individual. You can purchase it by obtaining exclusive rights to it (Article 1488 of the Civil Code of the Russian Federation), or you can have a commercial or licensing agreement (Articles 1027 and 1489 of the Civil Code of the Russian Federation).

To have the exclusive right to a trademark created by it or an organization, it must register it. Such rights are confirmed by a certificate for a trademark or service mark (Article 1481 of the Civil Code of the Russian Federation).

The exclusive right to a trademark and service mark is valid for ten years from the date of filing an application for the mark in

The validity period of the right may be extended at the request of the copyright holder. Renewal is possible an unlimited number of times (and each time the period is extended by ten years).

To register a trademark, you must submit an appropriate application (Article 1492 of the Civil Code of the Russian Federation). An enterprise can undertake registration on its own, or it can involve professional attorneys for this.

An application for registration of a trademark is submitted in Russian and must contain (clause 3 of Article 1492 of the Civil Code of the Russian Federation):

1) application for state registration;

2) the claimed designation;

3) a list of goods, works and services in respect of which the trademark or service mark will be registered;

4) description of the requested designation.

In addition, documents confirming payment of the state duty must be attached to the trademark application.

After the registering authority receives the application for registration, only a formal verification begins at the initial stage (compliance of the submitted documents with legal requirements) (Articles 1497-1499 of the Civil Code of the Russian Federation). At the next stages, an examination of the company designation itself is carried out and a decision is made on registration or refusal.

If a trademark is registered in state register, information about it is published in the bulletin of Rospatent (Article 1506 of the Civil Code of the Russian Federation). The certificate is issued to the enterprise within a month (Article 1504 of the Civil Code of the Russian Federation).

The certificate confirms the right to a trademark or service mark on the territory of the Russian Federation. In addition, Russian organizations have the right to register a trademark and service mark in states or carry out its international registration. Exclusive rights Russian organizations on the territory of foreign states are confirmed by a separate certificate.

International trademark registration

Registration of the right to a trademark and service mark is territorial in nature, that is, the right to protect one’s trademark and service mark legal entities and are available only in those countries in which they have received certificates of registration from the relevant registration authorities.

Nevertheless, the law also provides for international registration of a trademark. Such a special procedure is provided for by the Madrid Agreement Concerning the International Registration of Marks of April 14, 1891 (hereinafter referred to as the Madrid Agreement). It provides trademark protection in the territory of participating countries. The registration procedure is specified in the instructions to the Madrid Agreement.

International registration of a trademark is carried out by the International Bureau (Part 2 of Article 1 of the Madrid Agreement).

The trademark must first be registered in the country of origin with the national trademark office. In the Russian Federation this department is Federal service on intellectual property, patents and trademarks (Rospatent).

Russian enterprises and citizens have the right to carry out international registration of a trademark (Clause 1 of Article 1507 of the Civil Code of the Russian Federation). The application is submitted through Rospatent (clause 2 of Article 1507 of the Civil Code of the Russian Federation).

Accounting

Russian accounting standards classify an organization's exclusive rights to a trademark or service mark as intangible assets. Accordingly, their accounting rules are determined by the accounting regulations “Accounting for intangible assets” PBU 14/2007 (approved by order No. 153n dated December 27, 2007).

Types of expenses

Expenses for the creation (purchase) of a trademark or service mark are capitalized on account 08 “Investments in non-current assets”. In particular, the value of assets is formed by the following expenses:

Amounts paid in accordance with the agreement on the alienation of the exclusive right to a trademark or service mark to the copyright holder;

Duties and customs fees;

Non-refundable taxes, government, patent and other fees;

Remunerations paid to the intermediary organization and other persons through which the mark was purchased;

Amounts paid for information and consulting services related to the acquisition of a trademark (service mark);

Amounts paid for the performance of work or provision of services to third parties under contract agreements;

Expenses for remuneration of employees directly involved in the creation of an asset under an employment contract;

Contributions for social needs;

Expenses for the maintenance and operation of property, depreciation of fixed assets and intangible assets used directly in the creation of an intangible asset, the actual (initial) cost of which is formed;

Other expenses directly related to the acquisition (creation) of an intangible asset and providing conditions for using the asset for its intended purposes.

Expense accounting

The value of a trademark and service mark as an intangible asset is not subject to change, except in cases of revaluation or impairment. Trademark registration costs are accounted for as follows.

The useful life is determined by the validity period of the organization's rights specified in the certificate for the trademark or service mark.

The main problem of accounting for the costs of acquiring (creating) a trademark is the classification of costs for international registration or registration in a foreign country after registration of the mark in Russia. The costs of such registration are classified in different ways:

As expenses associated with the creation of a new intangible asset;

As expenses associated with the use of a previously created (acquired) intangible asset.

The Russian Ministry of Finance is of the opinion that in accounting, the costs of registering a trademark, even international, should be considered as expenses for ordinary activities and they do not form a new intangible asset (letter of the Russian Ministry of Finance dated August 2, 2005 No. 03-03-04 /1/124).

However, this opinion is not the only one. Let us turn to paragraph 5 of PBU 14/2007, which states that the accounting unit for intangible assets is an inventory item.

Such an asset is recognized as a set of rights arising from one patent, certificate, agreement on the alienation of the exclusive right to a result intellectual activity or to a means of individualization or in another manner by law, intended to perform certain independent functions.

If we formally follow paragraph 5 of PBU 14/2007, we can conclude that the costs of international registration or registration in a foreign country of a trademark or service mark can be classified as a separate inventory item:

Firstly, the rights are confirmed by a separate certificate;

Secondly, international registration of a trademark provides the organization with other rights - valid in the territory foreign country;

Thirdly, the period (term) of validity of rights confirmed by an international and Russian certificate may be different.

At the same time, it is not the organization’s rights to a trademark or service mark that are recognized as an intangible asset, but the sign itself (clause 4 of PBU 14/2007).

It is difficult to make an unambiguous conclusion about the procedure for accounting for expenses for the international registration of a trademark based on the provisions of Russian accounting standards. The enterprise must independently decide on the procedure for accounting for these expenses and secure it as an accounting element for accounting purposes.

Tax accounting

In tax accounting, trademarks and service marks, the original cost of which is more than 40 thousand rubles, are taken into account as depreciable property (letter of the Ministry of Finance of Russia dated November 8, 2012 No. 03-03-06/1/579).

The Tax Code of the Russian Federation does not define what should be understood as a unit of tax accounting for an intangible asset. Only the definition of an intangible asset is given.

In accordance with paragraph 3 of Article 257 of the Tax Code of the Russian Federation, intangible assets are recognized as the results of intellectual activity acquired and (or) created by an enterprise and other objects of intellectual property (exclusive rights to them).

Moreover, they must be used in the production of products (performance of work, provision of services) or for the management needs of the organization for a long time (lasting more than 12 months).

To recognize an asset as intangible, it must have the ability to generate economic (income). In addition, the asset and its costs must be supported by properly executed documents (including patents, certificates, other documents of protection, a patent acquisition agreement, a trademark).

Intangible assets include, in particular, the exclusive right to a trademark and service mark.

The Russian Ministry of Finance has changed its position regarding tax accounting of expenses for international registration of a trademark.

Thus, in letter dated August 2, 2005 No. 03-03-04/1/124, the Russian Ministry of Finance came to the conclusion that in tax accounting the exclusive right to use a trademark on the territory of foreign states, which arose during its international registration, is recognized as an intangible asset and is a depreciable property of the organization.

Currently, the position of officials is different (letter of the Ministry of Finance of Russia dated November 8, 2012 No. 03-03-06/1/579). According to the opinion expressed in the letter, the receipt by an enterprise of exclusive rights to use a trademark registered in the Russian Federation on the territory of a foreign state does not lead to the emergence of a new intangible asset (trademark), but is an additional basis for the legal protection of an already existing intangible asset. The costs of such registration are included in other costs associated with production and sales.

Taking into account the inconsistency of the position in recognizing the costs of registering exclusive rights to use a trademark registered in the Russian Federation on the territory of a foreign state (international registration), the tax accounting procedure should be fixed as an element of tax accounting policy.