24 February 2022 marked a new era for the world, with the phrase "war in Europe" once again becoming a reality. Russian troops crossed the border of Ukraine marked with the specific "Z" and "V" symbols. Following this, these symbols started to be heavily used by the Russian government as pro-war propaganda and appeared on pro-Kremlin TV channels, social media accounts, and all types of equipment, civilian clothing, etc. In fact, they have become an icon of the war comparable to the Nazi swastika.
To combat Russia's information campaign, on 22 May 2022, the Parliament of Ukraine adopted new Law No. 2265-IX ("Law"), which prohibits the propaganda of Russian Nazi totalitarian regime and armed aggression of the Russian Federation against Ukraine, including the use of the symbols associated with Russia's military invasion of Ukraine.
What are the symbols in scope?
The Law outlines the following two groups of prohibited symbols:
- Standalone "Z" and "V" Latin letters (without a legitimate context or in the context of justifying armed aggression against Ukraine or other military actions) or words in which "З," "С," "В," or "Ф" Cyrillic or other letters are replaced with "Z" or "V" Latin letters with a visual accent on the latter
- Symbols of Russia's armed forces, including its ground, aerospace, strategic missile, special operations forces, airborne troops, navy, other armed formations and (or) bodies
However, the list is non-exhaustive, and thus any other symbols of Russia's military invasion of Ukraine that currently exist or will emerge later are also within the scope.
How does the Law affect the usage of trademarks containing such symbols?
The Law defines the "usage" of these symbols rather broadly and covers placement on media and public surfaces, within public event sites, in print materials (posters, postcards, etc.), on clothes, in various kinds of advertising, on social media, in films and video blogs, etc. In fact, almost any use of such symbols in branding and promotion is affected, which consequently brings risks for trademarks containing such symbols, especially when the symbols are dominant elements of the trademarks.
As a rule, the dominant position of a particular element is determined by its semantic load and its impact on visual and/or phonetic perception of a sign as a whole. The dominative element is larger in size and has a more perceptible location in the composition (e.g., the element may occupy a central place). The image of one of the elements in color can also contribute to the dominance of this element in a composition. Here are some examples of registered and pending trademarks in Ukraine that are potentially crossing the line:
However, the mere presence of these symbols in a trademark does not put it at an immediate risk. The lawmaker's intention is to stop propaganda, not business, so the key criterion under the Law is purpose. It is not prohibited to use such symbols with a legitimate, justifiable purpose, where there are no signs of propaganda of the Russian Nazi totalitarian regime or Russia's armed aggression against Ukraine. Therefore, only a combination of a relevant trademark and propaganda signs/purpose will trigger the statutory threshold.
To give more clarity, the Law also underlines several exceptions that may be considered legitimate. One of them mentions the usage of such symbols in trademarks that were registered, filed for registration or otherwise protected in Ukraine, before 24 February 2022. Although, at first glance, it sounds like a sufficient safeguard (at least for the pre-24 February trademarks), the complete reliance on this exception is not advisable. The formulations of the Law are quite loose in this regard, which means that even the pre-24 February trademarks might get into trouble when they are used in an inappropriate context.
Will the Law affect the registration of trademarks with such symbols?
As regards trademark registration, the Law does not have any direct impact on this process, nor does it amend the local trademark laws. Hence, the presence of such symbols has not been a clear absolute ground for refusal to register a trademark so far.
Nevertheless, it cannot be excluded that the National Intellectual Property Office will be very reluctant to register such trademarks when the unlawful purpose of use is obvious enough. In its reasoning, the office will likely refer to the contradiction of public order or the principle of morality by such trademark, unless a specific ground is introduced by the lawmakers in the future.
What are the consequences of violating the Law?
The liability for violating the Law by trademark owners has not been established yet. The Law only generally refers to the civil, administrative, and criminal liability that might be faced, but without any clarity. However, even without clear statutory penalties, the law enforcement bodies are expected to undertake active scrutiny and make attempts to enforce the prohibition in one way or another. Moreover, the draft laws penalizing such activity will likely be considered by Parliament in the near future so this is something to be watched out for by trademark owners.
Another aspect to weigh is negative PR risks. Nowadays Ukrainian society is very active and united against any evidence of pro-Russian support by brands and their owners. Thus, any risks of consumers' perception of the symbols of Russia's military invasion in branding would be even more harmful for a company's reputation. To avoid such repercussions, many brands have already preventively removed "Z" or "V" symbols from their branding or marketing materials. One example is Samsung, which has removed the letter "Z" from its phone series in several European countries. The titles of a few films have also been changed specifically because of the undesirable associations with Russian aggression.
In light of this new Law, trademarks owners should be cautious of — and recalibrate where it is necessary — their brand and marketing strategies to avoid any unjustifiable use of the symbols of Russia's invasion. As similar initiatives will likely follow, proactive monitoring of the legislative novelties and enforcement practices will also be essential in the coming months.