Your patent is no good here: Russia’s war on intellectual property following war in Ukraine

By Elizabeth Tirrill, 2L member

The Russian invasion of Ukraine began Feb. 24 for purposes of “de-Nazifying” Ukraine, according to Russian President Vladimir Putin. Putin claimed the war is not actually a war at all, but simply a “special military operation.”

Regardless of terminology, Russia’s actions are leading to detrimental consequences to the people of Ukraine and to Russia’s economy. One such consequence is the amount of sanctions issued against Russia by western nations and international authorities.

It is reported Russia’s assets have been frozen in its central bank to prevent the state from reaching its approximately $63 billion of foreign currency reserves. Additionally, the sanctions on Russia cover multiple industries, including military goods, luxury fashion goods, international departing flights, and oil and gas. Some international businesses have also seized operations in Russia since the invasion.

The Russian government in early March took an unexpected course of action in response to the international sanctions and condemnation of Russia’s actions. Putin issued a decree that “effectively legalize(s) patent theft from anyone affiliated with countries ‘unfriendly’ to it, declaring that unauthorized use will not be compensated,” the Washington Post reported.

“This means that Russian businesses can use intellectual property, such as patented inventions or fashion designs, without having to pay or seek the consent of the rights holders,” The Fashion Law reported.

Under this decree, patent holders outside of Russia will have no recourse if a Russian entity or individual infringes on the patent. “Russia’s decree removes protections for patent holders who are registered in hostile countries, do business in them or hold their nationality,” according to the Washington Post.

While the decree only specifically mentions patents, it is apparent that it applies to trademarks as well. Professionals in the field agree that right now, intellectual property rights holders have no immediate relief available for stolen intellectual property in Russia. “Just how much IP is in jeopardy is unclear,” Yahoo Finance reported.

Normally, international intellectual property disputes could be resolved by the World Trade Organization (WTO). However, that route for relief requires the federal government of the affected rights holder to bring a claim in front of the WTO.

Commenters believe that this is unlikely to happen as nations such as the United States are probably not very concerned for intellectual property rights at the moment with the current state of the world. Additionally, if Russia is expelled from the WTO because of the war on Ukraine or otherwise, the organization would no longer have jurisdiction over Russia’s actions.

While a war on intellectual property is unexpected, the strategy is not completely unprecedented.

An action like this has not been taken since World War I and the Trading With the Enemy Act when the now-famous Aspirin patent was seized by the United States and then later shared with France, Russia, and the United Kingdom after the Treaty of Versailles. However, unlike the Trading With the Enemy Act, Russia’s decree threatens intellectual property on a much larger scale.

The effects of Russia’s decree are already apparent, especially on trademarks. Trademark applications have already been filed in the past week for close resemblances to IKEA, Instagram, Starbucks, and McDonald’s in Russia. Additionally, trademark applications have also been filed for marks resembling if not totally copying Nike, Puma, Chanel, and Christian Dior.

A Russian court has already ruled in favor of an alleged Russian infringer because of the decree. The judge dismissed a copyright and trademark infringement claim brought by the creators of British children’s television show Peppa Pig. The judge cited on the record that the unfriendly actions of the United States and other foreign nations toward Russia gave influence to his decision.

Intellectual property rights holders are at risk for theft in Russia, and under this decree, those rights holders have no possibility for redress in the near future. It is unclear how this issue will unfold in the coming weeks and months.

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