By Emmett Chan
LOS ANGELES — One way in which Russia has been retaliating against countries who oppose its invasion of Ukraine is through something seemingly unimportant in the face of a momentous war: trademarks.
In March, Russian Prime Minister Mikhail Mishustin authorized the importation of trademarked products without the trademark owner’s consent —or “parallel imports.”
These parallel imports are a response to numerous financial, trade, and travel sanctions issued by Western countries, as well as global brands’ choices to suspend business in Russia.
Boris Edidin, deputy chairman of the Commission for Legal Support of the Digital Economy of the Moscow Branch of the Russian Bar Association, explains in a legal commentary that “entrepreneurs have the opportunity to import goods of well-known brands, regardless of the presence or absence of an official representative on the Russian market.”
In addition, Russian entrepreneurs and businesses have been attempting to take advantage of foreign brands’ absence in Russia to file applications for similar or identical trademarks to those of global brands.
However, these applications are unlikely to succeed—at least for now. Therefore, Russian businesses and entrepreneurs can only import globally branded products, rather than producing these products themselves.
It is important to clarify that trademarks, copyrights, patents and intellectual property are all different terms.
Intellectual property is a term for creations of the human intellect that are protected by law.
A trademark is a sign, design or expression that distinguishes a product or service from another by identifying its source.
A copyright is the exclusive right to copy, distribute, adapt, display, and perform a creative work.
A patent is the exclusive right to determine how an invention can be used by others.
Thus, while Russia’s Decree 299 allows the use of patented inventions if the patent is from Russia’s list of “unfriendly” countries—including the United States and European Union member states—Russian entities are still unable to manufacture, distribute and sell products with trademarks from these countries.
Peter B. Maggs, research professor of law at the University of Illinois at Urbana-Champaign and notable expert on Russian intellectual property, believes that efforts to register identical or similar trademarks are likely to be unsuccessful.
He presents as evidence a June 2 decision by Russia’s Court of Intellectual Property Rights to strike down the trademark “FANT” for a beverage incredibly similar to the soft drink “FANTA.”
Even so, Decree 299 set a dangerous precedent of nullifying international intellectual property rights that could later extend to copyrights and trademarks.
The pressure exerted on the Russian economy by brands’ suspended operations in Russia demonstrates in specific terms how non-governmental entities such as businesses—in this case, businesses with global brands—can take action against Russia, adding to the economic pressure on the Russian government that could potentially lead them to withdraw from their invasion.
However, if a brand whose intellectual properties were used in Russia has suspended Russian sales in support of Ukraine, it should monitor the situation, keeping abreast of any instances of IP infringement occurring in Russia that may arise from parallel imports or any further developments. Accordingly, it should determine methods of demonstrating each instance of infringement.
Crucially, trademarks may be canceled in Russia after a three-year period of continual non-use, which would make any efforts to claim infringement for naught.
In such a case, a Russian court can consider evidence provided by the trademark owner “that the trademark was not used due to circumstances beyond his control,” according to Article 1486 of the Russian Civil Code.
However, legal journalist Cynthia Martens warns that “brands claiming infringement still risk being ineligible for damages or injunctive relief, because technically they are not losing sales while pausing business in Russia,” a critical detail to consider when opposing Russia through business.
When brands are considering the options of resuming business in Russia or commit to the possibility of losing Russian business in the long-term, they should form various plans that can be updated depending on how the Russia situation evolves.
Of course, brands are likely already developing their own courses of action. For the average individual who cannot affect the situation in Russia on their own, the complex state of international trademarks in Russia serves as a reminder of the continual realities that groups and individuals should acknowledge alongside their efforts to protest the Russian invasion of Ukraine.
It is important to express support for Ukraine and condemn Russia, but beneath these strong convictions should be awareness of consequences like the global trademark situation.
If individuals are to advocate for further nonviolent action against Russia, outlining specific possible acts is more effective than championing vague ideals. Accordingly, one can only advocate for specific actions if they educate themselves thoroughly on the issue in question.
So while something like trademarks may be the furthest from people’s minds when they consider the Russia–Ukraine situation, trademarks and other significant elements that appear insignificant are crucial to gaining a fuller picture of the complex social, political and economic circumstances that surround global interactions with Russia.
