In our recent overview of March 2022, we summarised a hefty number of restrictions in the field of media, the ultimate purpose of which is to restrict dissemination of pro-Kremlin propaganda in Ukraine.
We thought that together with other related laws (e.g., Law of Ukraine "On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propagation of their Symbols") the adopted restrictions cover all important areas.
However, on 22 May 2022, the Ukrainian Parliament went an extra mile and adopted a new package of the anti-propaganda restrictions. This time, it is not only about amendments to the existing laws, but also about a full-fledged Law of Ukraine "On Prohibition of the Propaganda of Russian Nazi Totalitarian Regime, Armed Aggression of the Russian Federation as Aggressor State against Ukraine and the Symbols Associated with Russia's military invasion of Ukraine" No. 2265-IX (the "Anti-Propaganda Law"). The Anti-Propaganda Law specifies and extends the existing restrictions as well as amends a number of the Ukrainian media laws banning the use of the 'toxic' symbols (as we discuss further).
What letters, words and symbols are prohibited?
The Anti-Propaganda Law provides the following two groups of prohibited symbols, including letters and words, which are associated with the Russian invasion (the "Prohibited Symbols"):
- usage of "Z" and "V" Latin letters (without a legitimate context or in the context of justifying armed aggression against Ukraine or other military actions) either as standalone symbols or by replacing "?," "?," "?," or "?" Cyrillic or other letters in words with "Z" or "V" Latin letters with a visual focus on "Z" or "V" Latin letters;
- official and unofficial symbols (emblems, logos) of Russia's armed forces, including its ground, aerospace, navy, strategic missile forces, airborne troops, special operations forces, other armed formations and/or bodies of the aggressor state.
Due to the broad and vague nature of the wording, it is a daunting task to define an exhaustive list of the Prohibited Symbols. It may well be that other symbol of Russia's military invasion of Ukraine that currently exists or will be used in the future would fall within the above restrictions.
For example, although the Anti-Propaganda Law does not specifically name, but the above restriction would likely cover (i) symbols of the Wagner Group and Kadyrov's men which, reportedly, fight in Ukraine for Russia; and (ii) St. George ribbon (in addition to other restrictions which are already in places concerning such ribbon).
The usage of the Prohibited Symbols is classified as propaganda, i.e., one of the types of promoting Russian Nazi totalitarian regime and armed aggression of the Russian Federation against Ukraine (para. 3 of Art. 2 of the Anti-Propaganda Law). Paragraph 5 of Art. 2 of the Anti-Propaganda Law outlines the "usage" of the Prohibited Symbols rather broadly in relation to which one can argue that it covers all types of their use in the public space.
How to navigate through?
The adopted Anti-Propaganda Law is an important addition to the effective Ukrainian laws concerning anti-propaganda restrictions in relation to which it is important to remain compliant for those businesses which operate in Ukraine irrespective of whether the corporate presence is in place. When it comes more closely to the adopted Anti-Propaganda Law, the following takeaways can be taken into account by the brand owners:
- Legitimate and justified use. In fact, not the Prohibited Symbols per se but anti-Ukrainian context of their use is prohibited. Paragraph 6 of Art. 2 of the Anti-Propaganda Law outlines nine groups of purposes/cases of legitimate and justified use of the Prohibited Symbols. In a nutshell, the usage of the Prohibited Symbols is permitted in case it does NOT promote Russian Nazi totalitarian regime and armed aggression of the Russian Federation against Ukraine.
Any usage of the Prohibited Symbols that goes beyond the purposes/cases of legitimate and justified use under para. 6 of Art. 2 of the Anti-Propaganda Law will likely be classified as pro-Russian propaganda.
- Restrictions timeframe. The restrictions on the use of the Prohibited Symbols are in effect for indefinite term. The Anti-Propaganda Law is in effect as of 12 June 2022 with the elements of the retroactive effect (see below our comments on the trademarks).
- Trademarks. The usage of the Prohibited Symbols in trademarks that were registered, filed for registration or otherwise protected in Ukraine before 24 February 2022 is among the cases of legitimate and justified use under para. 6 of Art. 2 of the Anti-Propaganda Law. However, given the wording of the Anti-Propaganda Law, this exception is not an absolute relief. The usage of pre-24 February trademarks can be classified as propaganda in case they are used in an inappropriate context.
The Anti-Propaganda Law does not introduce any amendments to the Ukrainian trademark law. As a result, the Anti-Propaganda Law does not have any direct impact on the process of examination of those trademark applications which were filed and/or those international registrations subsequent designation in relation to Ukraine was made after 24 February 2022. However, in case it would be obvious for an examiner from the Ukrainian IP Office (the "Office") that the use can be illegitimate, or such examiner has suspicion of legitimacy of use, the Office can refer to the contradiction of public order or the principle of morality as a ground for provisional or total refusal of protection.
We believe that the risks of provisional refusal for such trademark applications increases to great degree. In particular, in case examiner of the Office will have some doubts about legitimacy of use of the trademark bearing the Prohibited Symbols, as a matter of precaution, such examiner can issue a notification of provisional refusal expecting to obtain response and evidence from applicant. In such case, the provisional refusal can be treated as (anti-propaganda) verification for legitimacy of use of the Prohibited Symbols by the Office.
- Liability. The Anti-Propaganda Law does not provide any specific liability. Liability for violation of the Anti-Propaganda Law is generally similar to what we summarised in our previous overview. Depending on the circumstances of a particular case, illegitimate use of the Prohibited Symbols can qualify for administrative offence under the Code of Ukraine on Administrative Offences orcriminal offence under Chapter I of the Criminal Code of Ukraine (criminal offences concerning national security) and/or Chapter XX of the Criminal Code of Ukraine (criminal offences against peace, human security and international legal order).
Importantly, criminal liability for some of the relevant criminal offences may apply to legal entities.
- Short to-do list for brand owners. Those brand owners which have been historically and legitimately using the Prohibited Symbols as part of their brand logo, branding, corporate style, product name before 24 February 2022 should be particularly careful with the use of such IP assets in Ukraine making a strong pro-Ukrainian focus, especially in advertising and social media. Otherwise, it is advisable to avoid the usage of any such IP asset in Ukraine and/or in relation to Ukraine
It is also advisable to prepare a checklist for marketing, legal and other relevant departments to make sure that the legitimacy of use of the Prohibited Symbols is crash tested before going public.
Where relevant and to the extent possible, it may be worth consulting the relevant departments of state and/or law enforcement authorities. Notably, the Anti-Propaganda Law does not define any specific state authority that would supervise the compliance with the adopted law.
Information contained in this overview is for general information purposes only, does not constitute legal or other professional advice, and should not be relied upon as a substitute for specific professional advice tailored to particular circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.