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Russia Targets Intellectual Property Rights as Part of War in Ukraine

on Tuesday, 29 March 2022 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

As news reports continue to indicate that economic sanctions and trade restrictions imposed by several countries throughout the world are having a significant impact on the Russian economy, Russia has effectively rendered the piracy of certain intellectual property rights lawful.

In a decree issued March 7, the Russian government declared that those whose rights in Russian patents and certain creative works are infringed will no longer be awarded damages or other remedies if the rights holder is registered or does business in a country that is “unfriendly” to Russia. The “unfriendly” countries whose organizations are affected by the decree include the United States, the United Kingdom, the members of the European Union, and other states who have imposed sanctions on Russia.

While the ability of foreign patent holders to enforce their rights in Russian patents within Russia has been inconsistent in recent years, the decree is sure to make a difficult task harder. The effective loss of infringement remedies is likely to affect those western organizations with valuable Russian patents in the greatest way.

Additionally, the decree may foreshadow significant changes to the global patent landscape, as it is likely to place Russia in violation of international patent treaties. One such treaty is the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which, notably, provides for compulsory licensing of certain rights by a member nation in certain extreme cases of need, such as national emergencies. While the circumstances of Russia’s war in Ukraine may, to some, be unlikely to justify compulsory licensing, it is likely that any dispute as to a party’s rights under the TRIPS Agreement would be relegated to Russian courts. It is possible that in the years to come, current intellectual property treaties are revised in view of Russia’s decree.

Though the Russian government has not yet targeted trademarks or other proprietary rights, as many large corporations continue to cease operations in Russia, the Russian Ministry of Economic Development has suggested that it may lift restrictions on the use of marks for goods whose supply to Russia has been limited. This may permit infringement and counterfeiting activity to run rampant within Russia.

In fact, recent trademark filings before Rospatent, Russia’s Federal Service for Intellectual Property, include applications covering marks that clearly draw on – in many cases in an identical way – famous western marks, such as McDonald’s, Nespresso, Starbucks, and IKEA. As a first-to-file state, should Russia lift western trademark protections, these filings may provide the early applicants with valuable rights to use marks in a way that would otherwise be infringing.

The suspension or reduction of protection in intellectual property protections during wartime and other political disputes is not unprecedented. For instance, during the Second World War, the United States revoked certain patent rights of German companies as part of its war effort. However, today’s global economy is much more reliant on international use of intellectual property, and Russia’s recent efforts to thwart enforcement of intellectual property rights are likely to have more significant effects.

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