Difference between advertising and information signs. More information or advertising

For many government and municipal institutions working in a competitive environment and actively using advertising opportunities, this is not an idle question at all. After all, the answer to it depends, for example, on whether it is necessary to obtain permission to install an advertising structure or add a warning about medical contraindications to the message. What is the difference between informing and advertising?

The confusion of these two concepts is due to the fact that advertising, in essence, also refers to information. According to paragraph 1 of Art. 3 of the Federal Law of March 13, 2006 N 38-F3 “On Advertising” (hereinafter referred to as Law N 38-F3) it means information disseminated in any way, in any form and using any means, addressed to an indefinite circle of people and aimed at attracting attention to the object of advertising, the formation or maintenance of interest in it and its promotion on the market.

The main difference between the two concepts is the goal pursued in a given situation. If the message is aimed at attracting attention to a product, service or organization, it will be advertising; if there is no such goal, it will be informational.

Many official clarifications have been issued on this issue, but in practice difficulties still arise. In some cases, organizations interpret advertising as information and, as a result, receive orders from regulatory authorities; in others, representatives of the antimonopoly service regard information as advertising, which encourages organizations to defend their rights in court.

Let's look at some categories of messages.

Information at the location of the organization

Such information includes signs, photographs and other images placed on the facade of the organization's building. The fact that such information is not advertising was indicated in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 10/08/2012 N 58 and numerous letters from the Federal Antimonopoly Service (from 11/28/2013 N AK/47658/13, from 01/24/2011 N AK/1829, from 04/05/2010 N AK/9402).

The fact is that information that is required to be posted by law cannot be classified as advertising, and the indication on the building at the location of the organization of its name, address and operating hours is precisely one of the mandatory requirements imposed by Part 2 of Art. 10 of the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the protection of consumer rights”. In addition, the name on the sign is not indicated for advertising purposes at all - in this way the place of entry is indicated, and an indefinite circle of people is notified of the actual location of the organization.

However, not only the content of signs, but also other information for consumers placed directly at the place of sale of goods or provision of services is not covered by advertising. For example, the profile of the organization (pharmacy, cafe) and the list of services provided (hot lunches).

However, the antimonopoly authority in Letter No. AK/47658/13 still advises organizations to take into account special purpose and the circumstances of placing such information on a building and from this infer whether it is a sign or an advertisement. The courts take a similar approach.

Thus, FAS PO, in its Resolution dated November 29, 2012 in case No. A65-11508/2012, determined that the wall panel placed on the building where the organization was located contained only information about the profile of its activities indicating its location. However, there was no evidence that the panel created a preferential interest among consumers to purchase services from this particular organization. In this regard, the arbitrators found that the structure was not an advertisement, but a sign.

Photographs and other images of any goods placed on the façade of the organization's building without their distinctive features(for example, fruits, equipment) also cannot be recognized as advertising, since they do not pursue the goal of promoting a specific product on the market. At the same time, as the antimonopoly authority notes in Letter No. AK/47658/13, these images are no longer considered a sign. Organs local government has the right to assert its claims to appearance building facades, which means the placement of such images may have to be coordinated.

Information on transport and the organization’s website

Other ambiguous situation— inscriptions on vehicles owned by the organization. According to Part 4 of Art. 20 of Law N 38-FZ, the presence on such vehicles of distinctive signs indicating their ownership by any persons is not advertising. This rule, as explained by the antimonopoly authority in Letter No. AK/44977 dated December 2, 2011, applies to cases where a vehicle belonging to an organization is marked with its name (commercial designation). That is, in this situation, the goal is to inform an indefinite circle of people about the affiliation vehicle. However, other information placed on the car, but not related to the individualization of the owner organization, may be considered advertising.

Information published on the organization’s website can also be classified in two ways. On the one hand, reference, information and analytical materials, not aimed at promoting a product on the market and not being social advertising, are excluded from the scope of Law N 38-F3. This is stated in paragraph 3 of part 2 of its article. 2. Reference information, for example, includes information about goods produced or sold, services provided (including their prices), intended to inform site visitors. In other words, if the indication of prices on an organization’s website is aimed only at forming consumers’ understanding of the available service options and is necessary in order to provide site users with a choice, such information will not be advertising (letters of the Federal Antimonopoly Service of the Russian Federation dated July 29, 2010 N ATs/24295, dated 05/02/2012 N AK/13623).

On the other hand, it is the manner of presentation and the purpose of published information that can turn it into advertising. In particular, this will happen in a situation where the information posted on the site is aimed not so much at informing consumers, but at highlighting specific products among others (for example, through a pop-up banner).

Social advertisement

Social advertising also refers to borderline cases when it is unclear whether it is “already advertising” or “not yet.” The definition of social advertising is given in paragraph 11 of Art. 3 of Law N 38-FZ: this is information addressed to an indefinite circle of persons and aimed at achieving charitable and other socially beneficial goals, as well as ensuring the interests of the state. That is, the means and methods of distribution, the recipients to whom the message is intended, are common for regular and social advertising, but the goals are different. This key difference allowed the antimonopoly service to conclude that social advertisement is not a type of advertising and is not subject to the requirements of Law N 38-FZ relating to simple advertising (Letter dated 04/16/2013 N AK/14957/13).

Practice of medical organizations

Among all institutions, medical organizations are perhaps the most active in using all kinds of advertising tools and methods of information. Therefore, in their activities, the question most often arises of which category a particular message belongs to. Often, organizations receive an answer to this only in court.

Thus, a medical organization placed on the building where it is located the following information: “All types of massage: French, Chinese, Hawaiian, therapeutic, anti-stress, hydromassage...”. The antimonopoly authority considered it an advertisement, and also an inappropriate one - it did not contain information about the presence of contraindications to the use of medical services. The organization considered this decision illegal and went to court, but the arbitration courts of three instances sided with the antimonopoly authority. In the Resolution of the FAS ZSO dated July 16, 2013 in case No. A70-8301/2012, the arbitrators noted that the banner placed at the entrance to the clinic contained not only an indication of the provision of massage services classified as medical services, but also specific types of massage, including therapeutic. That is, it was medical services that were advertised, and in violation of the requirements of Part 7 of Art. 24 Law No. 38-FZ.

By the way, a warning about the presence of contraindications for use very often becomes a cause of controversy for medical organizations: after all, if medical services are advertised (note, here we're talking about no longer about informing) - such an addition is necessary, and if it is a medical activity, there is no need to warn about contraindications. This conclusion made the Plenum of the Supreme Arbitration Court in Resolution No. 58 dated October 8, 2012, explaining that the concept of “medical activity” is broader than the concept of “medical service”.

A similar decision was made by the FAS ZSO in its Resolution dated 08/06/2013 in case No. A67-6423/2012 (although the antimonopoly authority that issued the order medical organization, and the court of first instance took the opposite opinion). Since the advertising text contained the names of the organization, it structural unit and location, and does not state the provision of a specific medical service and treatment methods that will ultimately lead to a cure for the disease, this advertisement, as the arbitrators considered, is not regulated by the norms of Part 7 of Art. 24 Law No. 38-FZ.

Conclusion

From the above, two conclusions can be drawn.

1. If employees of an organization have a question about whether the messages being distributed are informational or advertising in nature, they should focus primarily on the purpose of posting. Pay attention to the way the text is presented - the size of the font and the design itself, the presence or absence of encouraging phrases like “We will be glad to see you,” etc.

It happens that after fulfilling the provisions of one law - installing a sign with the information the consumer needs - officials catch the company in “violation” of another. They claim that the new sign is nothing more than “illegally installed outdoor advertising.”

Guilty without guilt

Agree that if the trademark is a pyramid, it is stupid to claim that everyone who comes from Egypt wears its advertisement on their bags and T-shirts. And it’s even more ridiculous, say, to demand that a company pay for it. Equally strange would be attempts to call information about consumer properties product, its range and rules safe use(that is, those data that, by law, must be displayed in a prominent place for the benefit of consumers). Inspectors may also mistake a sign with information about the company’s operating hours for advertising.

Some particularly suspicious citizens still believe that any information that in one way or another points to a specific enterprise and the products it produces is a desire of businessmen to advertise themselves. However, this point This view is not always shared by judges, and not all officials.

Once, a statement was submitted to the Office of the Federal Antimonopoly Service for St. Petersburg that one company was violating advertising legislation. This was expressed in the fact that on its websites on the Internet and in advertising leaflets contains false advertising information about the possibility of making a profit by investing in shares of large foreign companies. The citizen who raised the alarm explained his indignation not only due to the information discovered, but also by the fact that some time ago he tried to “invest” in this way. However, contrary to promises, the company directed investors’ money not for the strategic purposes of creating funds, but for acquiring valuable papers Russian companies, including those affiliated with this enterprise itself. Therefore, one day, a deceived investor decided that the company was using illegal advertising to attract investors, and asked to check the activities of this company, inform him about the results of the audit, and also, if necessary, oblige the organization to eliminate the detected violations.

Check for accuracy

Over the course of two months, antimonopoly service specialists analyzed the controversial pages of Internet sites. But they did not find any violations of advertising laws. The vigilant citizen was explained that the information that worried him, posted on the official websites of companies, does not fall under the scope of the Advertising Law - it is just general information, and the site itself is an independent information resource and information about the funds of the enterprise posted on the specified resource is also of an informational nature.

However, the citizen decided that the officials simply ignored his statement and filed a complaint with the court about the inaction of the Department. In it, he asked to recognize the answer about the absence of violations as illegal and to force officials from the Department to more conscientiously consider the “signal” received from him. After all, the materials posted on the site contain false advertising information that misleads consumers.

For a limited circle of people

The judges did not support these demands (decision of the Kuibyshevsky District Court of St. Petersburg dated October 25, 2010), but this did not stop the persistent citizen and he filed a cassation appeal. But a fiasco awaited him in cassation too. The servants of Themis explained that one of the fundamental features of advertising information is its address to an indefinite circle of people, that is, the public nature of such information (Article 3 of the Law of March 13, 2006 No. 38-FZ “On Advertising”, hereinafter referred to as the Law on Advertising ). In this case, in order for any consumer to receive information posted on the pages specified by the applicant of the sites, he must know email address site (which was not known to everyone, i.e. is not public) and using a set of signs known to him in advance to get to the pages of the site. In addition, the controversial information resource was created with the aim of providing complete, prompt and free information to private investors operating in the stock market. And the Advertising Law provides for the arbitrary receipt of advertising information by the consumer. Again, their public nature.

Further, the judges pointed to the official clarifications of the Federal Antimonopoly Service itself, according to which advertising does not include information about manufactured or sold goods posted on the seller’s official website if the specified information is intended to inform site visitors about the range of goods. And the information in question, as already mentioned, was intended specifically for a narrow circle of specialists and investors working in the stock market. Consequently, the information that outraged the applicant is not advertising, and there is nothing to reproach the employees of the Department, who carefully studied the question received by them and gave a detailed written answer to it (even if the applicant was not satisfied with it) (cassation ruling of the city court of St. Petersburg dated 22 March 2011 No. 33-3952).

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

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

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

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

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

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

The procedure for installing signs in stores

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

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

• Name;
• address;
• work schedule;
• Kind of activity.

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

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

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

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

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

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

The law stipulates that the language of inscriptions on signs is Russian. It is possible to use graphic images. The 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 must be 2 times smaller than the inscription with information about the type of activity;
• Abbreviations and abbreviations must not be used;
• the inscription in a foreign language should not be made in Russian transliteration.

By law, the sign must be illuminated at night.

Fines for signs

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

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

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

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

How is it that by installing an information sign at the entrance to an enterprise, a company receives not a means of identifying the company, but advertising itself with all the ensuing problems?

Currently, there are a number of special documents that distinguish between the concepts of “advertising” and “sign”. For example, specialists of the Federal Antimonopoly Service are convinced that the indication at the location of the organization of its name, address and operating hours refers to the mandatory requirements for a sign under the Law on the Protection of Consumer Rights, and, therefore, such information cannot be considered as advertising, regardless of manners of its execution (letter of the Federal Antimonopoly Service of the Russian Federation dated March 16, 2006 No. AK/3512).

In another letter, officials of the same department indicated that the placement of a company’s commercial designation, as well as the scope of activity and type of goods sold or services provided, at the place of work of a company may well be recognized as a business practice (letter of the Federal Antimonopoly Service of the Russian Federation dated July 23, 2009 No. ATs /24234).

And two years later, in their next letter, civil servants of the antimonopoly service emphasized: the placement of words and expressions that generalize the name of a group of goods cannot be regarded as advertising, since in this case the consumer’s interest in a specific unit of product, for example, a certain brand or a clearly named type of service, cannot be considered (letter of the Federal Antimonopoly Service of the Russian Federation dated January 24, 2011 No. AK/1829). In addition, the statesmen once again recalled that the requirements of the Law “On Advertising” do not apply to information the disclosure or dissemination of which is mandatory, for example, due to the requirements of the Law on the Protection of Consumer Rights.

“Pay attention,” the lawyer warns VitalyKromeyko, – the position of the courts regarding the indication on signs of the list of types of goods sold is very different. Thus, some arbitrators share the point of view of officials of the Federal Antimonopoly Service and that this is special case designations of types of activities, and therefore this information cannot be considered advertising (see, for example, decisions of the Federal Antimonopoly Service of the West Siberian District dated October 1, 2009 in case No. A45-19222/2008, as well as the Volga District dated August 13, 2009 in case No. A12-20100/2008). At the same time, other servants of Themis argue that placing on an information structure a list of goods sold by a company or services provided by it should be considered advertising, because such a sign is intended to attract the attention of an indefinite circle of people to specific goods sold, services provided or work performed (see, for example, FAS resolutions Central District dated January 21, 2010 in case No. A64-5496/09, the North Caucasus District dated August 27, 2009 in case No. A32-4843/2009-56/63, as well as the East Siberian District dated September 13, 2010 in case No. A19-26671). I cannot identify any clear system on the basis of which judges “all other things being equal” accept this or that point of view. In any case, it should be remembered that FAS employees in the above-mentioned letter No. AK/1829 clearly indicated that they do not support the position in which the presentation of the company’s name or the list of goods sold by it on a sign is regarded as advertising.”

Largeletters

However, some officials are trying to “pull” the above information under the concept of advertising. For example, the following story happened recently. Officials from the Press and Media Committee mass media checked compliance with the requirements of the Advertising Law and discovered that there was a rather large and noticeable structure on the roof of the bank building. The name of the credit institution was indicated in capital letters. Considering that such a noticeable sign was nothing more than advertising, officials, in pursuance of Part 10 of Article 19 of the Advertising Law, ordered the structure to be dismantled, because the inspected organization did not have special permission to install it. Having disagreed with such an order, the organization applied to the arbitration court to declare it invalid.

Threeships – Andoneopinion

The arbitrators of the first and appellate instances satisfied the bank's stated claim (decision of the Arbitration Court of the city of St. Petersburg and Leningrad region dated 09/03/2013 and the decision of the Thirteenth Arbitration Court of Appeal dated 01/23/2014. in case No. A56-32630/2013). The servants of Themis recalled that advertising is information addressed to an indefinite circle of people and aimed at attracting attention to the object of advertising, generating or maintaining interest in it and its promotion on the market (Clause 1, Article 3 of the Advertising Law). And the object of advertising can be either a product, or means of individualization (of the product, its seller or manufacturer), or the results of intellectual activity, or a certain event (competition, competition, lottery, promotion, etc.), to attract attention to which it is aimed the advertisement itself (Clause 2, Article 3 of the Law on Advertising). However, these rules do not apply to information, the disclosure or distribution or delivery to the consumer of which is mandatory by law, as well as to signs and indicators that do not contain information of an advertising nature (Part 2 of Article 2 of the Advertising Law). Indeed, according to the Law on the Protection of Consumer Rights, the contractor is obliged to indicate on the sign his company name, as well as his location and operating hours (Article 9 of the Law on the Protection of Consumer Rights). This rule The “highest” arbitrators also emphasized. They indicated that information that by force of law is required to be posted or is published due to business custom cannot be considered advertising (clause 1 of the Decree of the Supreme Arbitration Court of the Russian Federation dated October 8, 2012 No. 58).

Accordingly, the servants of Themis summed up, the controversial design is not advertising, but a sign, since it does not pursue advertising-related goals, and the requirements of advertising legislation do not apply to it.

Dissatisfied officials tried to challenge these decisions in cassation. But the federal arbitrators were in solidarity with their colleagues. They once again clarified that the structure on the roof of the bank cannot be considered outdoor advertising, because it only serves the purpose of identification, and indicates that the financial institution is located in this building. And no specific services that can generate interest potential clients this particular bank (favorable interest rates on deposits, special conditions for money transfers etc.), is not indicated on the controversial sign (FAS resolution Northwestern district from 21.04. 2014 in case No. A56-32630/2013).

Commoditysign

So, if a design established by a legal entity serves the purpose of identifying it, designating its location, mode of operation and types of activities, it cannot be considered as advertising. It’s another matter if a company publishes an image of its trademark on an “information board”. It was this information that some time ago provoked arbitration proceedings between officials and the company on whose building there was a sign that the auditors did not like. The main argument of the enterprise in defense of its interests that the disputed objects are ordinary signs and signs, and not advertising, was that they simply notify about the location of the enterprise.

"Practical Accounting", 2010, N 7

Many organizations tell us about themselves directly from the facades of buildings: " Plastic windows", "Economy hairdresser", "For expectant mothers"... How will this inscription be recognized - a sign or an advertisement?

It is important for an organization to clearly understand where the line is between a sign and outdoor advertising. This determines how to correctly take into account the costs incurred for their production.

What is a sign?

A sign is information about a company, including name, location address, type of activity and other information. The main objective of the sign is to inform an unlimited number of people that this organization is located in this place and not in any other place.

For every organization, a sign is its calling card and an integral part of its image. In addition, Art. 9 of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights” states that information about the organization’s profile, its brand name and registered trademark (sign) must be communicated by the seller (performer, manufacturer) to the consumer ( buyer). This means that the presence of a sign is mandatory for an organization, and its absence may entail administrative liability: in accordance with paragraph 1 of Art. 14.8 of the Code of Administrative Offenses, violation of the consumer’s right to receive necessary and reliable information about the product (work, service) being sold, about the manufacturer, about the seller, about the performer and about the mode of their work entails the imposition of administrative fine on officials in the amount of 500 to 1000 rubles, for legal entities- from 5,000 to 10,000 rubles.

However, very often inspection authorities equate signs with advertising, and local authorities in some cases require sign owners to prepare the documents necessary for placing outdoor advertising, for example, a passport for an advertising space.

Based on this, all signs can be divided into two groups: informational and advertising. Information signs contain only mandatory information, which acts as a means of individualizing the organization (name, location address, type of activity). If a sign contains other information in addition to the mandatory information, it may be considered advertising.

What information should be indicated on the sign so that it is informational and not advertising in nature?

The placement of advertising and advertising structures (signs) is regulated Federal law dated March 13, 2006 No. 38-FZ “On Advertising” (hereinafter referred to as Law No. 38-FZ). This Law does not apply to signs and indicators that do not contain advertising information (clause 5, clause 2, article 2 of Law No. 38-FZ).

Thus, in order for local authorities not to recognize your organization’s sign as advertising, it must contain only information that reveals the organization’s profile and its name. In this case, the name of the organization must be indicated in accordance with the provisions of Art. 54 Civil Code. Namely, according to paragraph 1 of this article, all legal entities must have such an individualizing feature as a company name, which must indicate the organizational and legal form.

The corporate name of an organization consists of two parts:

• indication of the organizational and legal form;
• in fact, the very name of the legal entity (clause 2 of Article 1473 of the Civil Code of the Russian Federation).

The name of a legal entity cannot consist only of words indicating the type of activity (for example, LLC "Plastic Windows"). The name of the legal entity must be reflected in constituent documents(clause 3 of article 54 of the Civil Code of the Russian Federation).

In addition to the company name, the mandatory information placed on the sign includes the location (address) and operating hours of the organization selling goods or performing work (providing services) to consumers (Clause 1 of Article 9 of Law of the Russian Federation N 2300-1).

According to paragraph 2 of Art. 54 of the Civil Code, the location of a legal entity is determined by its place state registration, which is carried out at the location of its permanent executive body, and in the absence of one - another body or person having the right to act on behalf of a legal entity without a power of attorney. The location of a legal entity must be indicated in its constituent documents.

In addition, it is also allowed to place on the sign registered in the prescribed manner trademarks, service marks and various decorative elements.

A sign designed in this way will not be recognized as advertising, although it can be placed on any means of outdoor advertising (boards, ground and wall panels, panel brackets, awnings, etc.).

Advertising designs

Often, organizations on their signs, in addition to the company name, indicate the field of activity of the organization (for example, the inscription “Plastic windows”, “ Best wines world" etc.) Inscriptions of this kind will be recognized not only as components of a sign, but also as advertising of goods produced or sold by the organization. Such a sign by government agencies, local governments and arbitration courts can be qualified as outdoor advertising.

In accordance with paragraph 1 of Art. 3 of Law N 38-FZ advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite number of persons and aimed at attracting attention to the object of advertising, creating or maintaining interest in it and promoting it on the market. The object of advertising is a product, means of individualization of a legal entity and (or) a product, a manufacturer or seller of a product, results of intellectual activity or an event to which advertising is aimed at attracting attention (clause 2 of Article 3 of Law No. 38-FZ).

For example, the name of a store placed on special structures on the facade of buildings cannot be a brand name, since it does not contain information about a legal entity, but, on the contrary, carries information that meets the criteria of advertising, that is, with the goal of attracting the attention of an indefinite circle of people to implemented in this place goods or services provided (Resolution of the Federal Antimonopoly Service of the West Siberian District dated June 5, 2007 N F04-2891/2007 (34079-A46-17) in case N A46-9647/2006).

The arbitrators of the Federal Antimonopoly Service of the North-Western District in the Resolution of April 23, 2007 in case No. A56-20150/2006 came to the conclusion that the operation of the “Bread” sign above the entrance to the store, placed by JSC “Khleb”, engaged in the sale of food products (bakery products , baking and confectionery), is also recognized as outdoor advertising and is not a store sign.

Thus, when installing and applying various inscriptions on the facades and windows of the office, the organization must clearly understand that the inspection authorities may consider the entry on the sign to be outdoor advertising.

How to hang an advertising sign

At the same time, hanging an advertising sign on the facade of a building is not so easy, and sometimes it is even impossible. To do this, the organization must, in accordance with Part 9 of Art. 19 of Law N 38-FZ obtain permission from local governments to install an advertising structure, and also pay a state fee for its issuance in the amount of 1,500 rubles. (Article 333.33 of the Tax Code of the Russian Federation).

To install an advertising structure, you must obtain permission from the local government municipal district or the urban district on the territory of which the specified structure is supposed to be installed. If such permission is not available, then such a sign is subject to dismantling on the basis of an order from an authority (Clause 10, Article 19 of Law No. 38-FZ).

The applicant organization has the right to independently obtain approval from the authorized bodies for the installation of an advertising structure and submit it to the local government body (Clause 13, Article 19 of Law No. 38-FZ).

• non-compliance of the design of the advertising structure and its territorial placement with the requirements of technical regulations;
• non-compliance of the installation of an advertising structure in the declared location with the territorial planning scheme or master plan;
• violation of the external architectural appearance of the existing development of a settlement or urban district (clause 15 of article 19 of Law No. 38-FZ).

In case of violation of advertising legislation (for example, regarding obtaining permission to install a sign), the organization will be held administratively liable under Art. 14.3 of the Code of Administrative Offences. A fine may be imposed on citizens from 2,000 to 2,500 rubles, on officials - from 4,000 to 20,000 rubles, on legal entities - from 40,000 to 500,000 rubles.

How to take into account an information sign

A taxpayer can take into account an information sign as part of fixed assets in accounting if it meets the criteria established by clause 4 of PBU 6/01 (approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n “On approval of the Regulations on accounting"Accounting for fixed assets" PBU 6/01").

Namely:

• the cost of the sign must exceed 20,000 rubles;
• the sign must be intended for use in production activities;
• it must be used for a long time (over 12 months);
• must bring economic benefits (income) in the future;
• must not be intended for subsequent resale.

If the sign meets all these criteria for a fixed asset, then it is accepted for accounting at its original cost, which includes the amount of costs for acquisition, production, delivery and installation (clauses 7, 8 of PBU 6/01).

To reflect the costs of making a sign in accounting, the accountant must make the following entry:

Debit 08 “Investment in non-current assets”, subaccount “Purchase of fixed assets”, Credit 60 “Settlements with suppliers and contractors”.

When including a sign in fixed assets, the accountant must make the following entry:

Debit 01 "Fixed assets" Credit 08.

If the sign does not meet at least one of the criteria for a fixed asset, then in accounting it will be reflected as part of the inventory.

For tax accounting purposes, a fixed asset is understood as a part of property used as a means of labor for the production and sale of goods (performing work, providing services) or for managing an organization, with an initial cost of more than 20,000 rubles. (Clause 1 of Article 257 of the Tax Code of the Russian Federation). A sign costing less than RUB 20,000. will be written off as material expenses in full at the time of its transfer into operation (clause 3, clause 1, article 254 of the Tax Code of the Russian Federation).

Regarding the deadline beneficial use fixed asset, then the taxpayer has the right to determine it independently in both accounting and tax accounting. When determining the useful life, it is necessary to proceed from the expected period of use of the sign, its expected physical wear and tear and do not forget to take into account the Classification of fixed assets approved by Decree of the Government of the Russian Federation of January 1, 2002 N 1 (clause 20 of PBU 6/01; clause 1 of Article 258 of the Tax Code of the Russian Federation).

How to take into account an advertising sign

As for tax accounting, there is no clear answer.

In accordance with paragraphs. 28 clause 1 art. 264 of the Tax Code, expenses for advertising manufactured (purchased) and (or) sold goods (works, services), taxpayer activities, trademarks and service marks, including participation in exhibitions and fairs, are considered other expenses associated with production and sales. Expenses for illuminated and other outdoor advertising, including the production of advertising stands and billboards, by virtue of clause 4 of Art. 264 of the Code relate to the organization’s advertising expenses in full (without the limitation of 1 percent of sales revenue).

Despite the above direct provision of the Tax Code, financiers recommend doing the following. In their opinion, if an advertising sign is recognized as depreciable property, then advertising costs should be written off by accruing depreciation charges. If the sign is recognized as non-depreciable, then advertising costs should be taken into account as part of other costs associated with production and sales, in accordance with clause 4 of Art. 264 of the Tax Code (Letter of the Ministry of Finance of Russia dated November 13, 2007 N 03-03-06/2/213).

The judges do not support this point of view. The costs of a sign can be classified as advertising and taken into account at a time, regardless of the status of the sign (depreciable property or not) (Resolutions of the Federal Antimonopoly Service of the Volga District of July 1, 2008 in case No. A57-10917/07, FAS of the Northwestern District of March 12 2008 in case No. A21-3735/2006).

As for the VAT deduction, practice shows: inspectors consider it possible to accept “input” VAT for deduction only after the cost of fixed assets has been transferred from account 08 to account 01.

However, according to the arbitrators, the right to deduction is not related to the moment the object is registered in accounting for any specific account. That is, registration on account 08 cannot be a basis for refusal to apply a VAT deduction (Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 8, 2008 N F04-6727/2008(15331-A67-42), Determination of the Supreme Arbitration Court of the Russian Federation dated March 3, 2009 N VAS-1795/09).

E. Zudenkova

Expert Editor