9/21/22, 12:25 AM How Russia is using intellectual property as a war tactic

Academic rigour, journalistic flair

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How Russia is using intellectual property as a war tactic

Published: March 18, 2022 11.23am GMT

Enrico Bonadio
Reader in Intellectual Property Law, City, University of London

Alina Trapova
Assistant Professor in Law and Autonomous Systems, University of Nottingham

As part of its deadly assault on Ukraine, Russia has taken the rare step to use intellectual property
rights as a war tactic. In early March, the Russian government issued a decree saying that Russian
companies are no longer obliged to compensate owners of patents, utility models and industrial
designs from “unfriendly” countries. These are the western states who have issued sanctions against
Russia, including the UK and US.

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. Affected companies
cannot enforce their patents and designs against Russian imitators.

This effectively legalises intellectual piracy in a country already known for failing to adequately
protect intangible assets. Last year, Russia was added to a US government “priority watch list” of
countries which do not sufficiently protect US intellectual properties.

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9/21/22, 12:25 AM How Russia is using intellectual property as a war tactic

Vladimir Putin’s move is clearly a reaction to the west’s economic sanctions and suspension of
Russia’s trade privileges. It is also an answer to many multinational companies’ decisions to cease
doing business with Russian companies.

Sanctions and boycotts have massively affected the Russian economy to the extent that the country is
now on the verge of bankruptcy with interest rates having doubled. The stock market has remained
closed for weeks and the rouble has fallen dramatically.

Unprecedented attack on intellectual property

The suspension of intellectual property rights as an economic weapon in the context of a conflict is
unprecedented, at least in recent decades. Historical examples date back to the first world war, when
the US introduced the Trading With the Enemy Act. This act seized copyright and patents owned by
enemy countries, including the patent to aspirin, famously a German invention.

Following the war, the Aspirin trademark owned by the German pharmaceutical company Bayer was
given up to the US, France, UK and Russia, as part of Germany’s war reparations agreed in the Treaty
of Versailles.

Russian officials have hinted that other intellectual property rights owned by western countries may
be soon restricted, including software and trademarks. This could allow local entrepreneurs to
appropriate and exploit – without permission and for free – brands such as McDonald’s. One Russian
restaurant chain has even recently adopted, and applied to register locally, a logo very similar to the
famous golden arches.

A McDonald's restaurant in Russia, with the golden arches

and company name in Cyrillic.

McDonald’s, perhaps the most famous western trademarks, now at risk of intellectual piracy in Russia.
Al.geba /
Shutterstock

The sanctions have also led a Russian judge to dismiss a copyright and trademark infringement
lawsuit brought by the British company that produces animated series Peppa Pig. Andrei Slavinsky
said in court that the “unfriendly actions of the United States of America and affiliated foreign
countries” influenced his decision.

Ukraine, for its part, has not been inactive in this intellectual property battle. Its ministry of defence
recently hacked and leaked confidential documents it claimed to have taken from a Russian nuclear
power station.

Does it violate international law?

Russia’s suspension of patents and other intellectual property rights owned by western companies
may violate international treaties which protect these assets at global level. All countries of the World
Trade Organization (WTO) need to respect these laws and guarantee that foreign businesses can
enforce intellectual property rights against imitators.

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Countries damaged by the Russian measure may bring Russia to a WTO court and ask for additional
sanctions to be imposed. This would again hit Russian businesses, especially those which rely on
brands and patented technology, as well as the creative industry sector.

The only way Russia could justify the measure would be to rely on a security exception made available
by the WTO itself. This exception allows countries to take any action they consider necessary to
protect their essential security interests in times of war. But it has never been invoked by any state in
the context of an armed conflict, and therefore never tested before the WTO judges.

If Russia is expelled from the WTO club, as has been proposed, that would, paradoxically, insulate it
from global intellectual property challenges. No country would be able to bring Russia before a court
of an organisation it is no longer a member of.

These are predictions of what could happen if the war continues. It goes without saying that a prompt
end to the conflict may instead relax the tension between the west and Russia, and put an end to the
current intellectual property battle.

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