Intellectual Property in Wartime

Russia’s brutal invasion of Ukraine continues as of this writing, with more than 600 – perhaps more than 2,000 -- Ukrainian civilians dead and Ukrainian cities bombarded into rubble.

You might wonder what that has to do with intellectual property (IP), but there are some surprising connections.

In the wake of Western sanctions against Russia, as the Washington Post reports,

Russia has effectively legalized patent theft from anyone affiliated with countries “unfriendly” to it, declaring that unauthorized use will not be compensated.

In addition,

Russian officials have also raised the possibility of lifting restrictions on some trademarks, according to state media, which could allow continued use of brands such as McDonald’s that are withdrawing from Russia in droves.

As the Post reports,

McDonald’s said Tuesday that it would temporarily close its 850 restaurants in Russia, a significant decision for a company that gets 9 percent of its revenue from Russia and Ukraine. Without trademark protections, Russia could “take those McDonald’s that got shut down and … just let local operators operate the restaurants and call them McDonald’s”….

Of course, a business is more than just a collection of its IP. Consumers eat at McDonalds not simply because they admire the famous “golden arches” trademark but because McDonalds imposes certain quality control and consistency standards on its franchisees.

If local operators in Russia take over McDonalds, there’s no guarantee they would follow the same standards, and thus the trademark might come to have little value in Russia.

Russia has not previously been especially respectful of IP rights. As the Post noted, last year Russia was among nine nations on a “priority watch list” for alleged failures to protect intellectual property.

The other counties on the list were Argentina, Chile, China, India, Indonesia, Russia, Saudi Arabia, Venezuela, and (ironically) Ukraine.

The Post points out that

Russia’s removal of intellectual property protections during wartime is not without precedent. Smithsonian Magazine describes how the German company Bayer lost its American patent on aspirin as the U.S. government seized property from firms associated with its enemies.

A letter from whistleblowers, posted on Twitter and addressed to the Director General of the World Intellectual Property Organization (WIPO) alleges that

Over the past few days WIPO staff have contacted us to express their concerns that WIPO activities may have inadvertently assisted Russia in developing and commercializing military equipment that is now being used against Ukraine and to kill innocent civilians.

WIPO opened a Russian office in 2014, allegedly “without the Member States’ knowledge or consent,” according to the whistleblowers.

Meanwhile, Russia is apparently seeking to strike fear in the West by threatening to enforce Russia’s own IP rights.

Most people don’t even read the end user agreements for the software they use or the websites they visit. But Russia apparently takes its user agreements quite seriously.

According to the official Russian Tass news agency, Russian Foreign Minister Sergei Lavrov

noted that Soviet and Russian-made anti-missile defense (ABM) systems, which are at the disposal of some NATO countries, cannot be legally transferred to third countries. "I want to remind all countries that may consider this idea that Soviet missile defense systems and Russian-made systems there are in accordance with intergovernmental agreements and contracts that also have a user certificate. And this certificate, the user agreement, does not allow them to be sent to third countries. This is a completely legitimate requirement," he said.