Ip Suspension During War Crimes: In The Light Of Russia – Ukraine Atrocities

Introduction

Understanding the concept of war crimes, it is easily extractable that life is the most important right that humankind possesses and it shall be protected at all costs. Anything that stands in the way of right to life should be suspended entirely or to the extent it is creating contradiction. Article 21 of the Constitution of India reveals the same idea and guarantees the right even in the times of emergencies. From this very nature of Right to life comes in the current controversy of IP suspension in Ukraine during Russia’s invasion in Ukraine.

To safeguard individual interest during the times of war, on April 1, 2022, Ukraine adopted a law named the Law of Ukraine On Protection of Individuals’ Interests in the Sphere of Intellectual Property. The idea of the law is that it suspends all the rights relating to the protection of IP deadlines and terms.

IP Rights During War

[Image Sources : Shutterstock]

Similarly, Russia is going through an economically rough phase because of the sanctions getting imposed on it for invading Ukraine so, in return it has suspended all the IP protection rights working in favour of those countries which means anybody can use any IP protected product without the permission of the IP holder. In Russia, even McDonald’s was copied and a business was being run with the exact same mark.

It is pretty evident from the different scenarios of two separate nations arising out of the same situation of waging war that compulsory suspension of IP can lead to various consequences probably into ones that we haven’t even thought of yet.

Why IP suspension is necessary and why need for the same was felt?

On February 24, 2022 Russia invaded Ukraine and a war that was unjustified and unreasonable in all rights started. The war is so brutal that it is claimed to be the greatest atrocious activity after World War II. The war has left both Russia and Ukraine in a difficult position, not to forget, Russia has stepped into the troubled water because of its own idea of sovereignty which implies that Ukraine doesn’t have the liberty to join or quit organisations or international platforms because it somehow affects the security of Russia. The dispute that is being discussed here is about Ukraine’s decision to join NATO which Russia strongly opposed because of the threat felt by it that if Ukraine also joins NATO, all the borders of Russia will be sealed with those nations that who are members of the organisation.

Similarly, Ukraine is in trouble and is bound to protect its existence against Russian atrocities. Russia has violated almost all international law norms in the name of its territorial security and as a result thousands of people including children have died in Ukraine. The infrastructural capacity of Ukraine has also been damaged by attacks through missiles and vacuum bombs. All the sectors of Ukraine have been severely affected but most of them all, the healthcare system. The healthcare system was already badly affected because of the Covid-19 pandemic and then Russian invasion degraded it even further. To deal with the very situation, need of IP suspension was felt.

Terms and conditions for grant, operation and protection of IP suits and grows in a country which is economically strong and in a condition to invent more and more IPs adding to its portfolios and not in a country that is already struggling on the survival part. Restrictions are meant to make IP operation tough so that there is fairness in the creation and dealing of the moral and economic rights of the creators alongside, balancing it with the right of exploitation of the users but making IP operation fair also implies leaving IP on the wishes of the creator with some minimal restrictions that government is authorised to impose under the validity of the statute. Now, when IP is left entirely on the wishes of the creator, it’s not necessary that he will keep the country’s welfare and needs above his individual benefit because that is a moral obligation and not a legal obligation as long as IP rights of the creator are intact. So, Ukraine is then left with only one way out that is waiving off its IP rights so that those moral obligations can be converted into legal obligations finally helping the drowning economy and people in desperate need of the medical attention.

Drawbacks of IP waiver

It is very much evident now that IP waiver is important for dealing with the exceptional circumstances that Ukraine is in but it also must be acknowledged that IP suspension has several drawbacks attached to it. Power and discretion of a state to suspend IP rights of the creators can be very devastating for economic and non-economic incentive of the creators as well as for economy in the long run. This threat can be understood by Russia’s reaction in the light of Russia – Ukraine dispute. Russia’s invasion into Ukraine’s sovereignty is seen as the most unjustified and unreasonable humanitarian crisis after World War II. Russia is going through a lot of economic and non-economic sanctions imposed by different nations to compel Russia to call off the atrocious practice against Ukraine. Russia’s reaction to such sanctions is a classic example of drawback of state’s power and discretion to suspend IP rights. Russia has suspended all the IP rights of the creators belonging to the countries who have imposed sanctions on Russia in support of Ukraine. The implications of such IP suspension is that all the businesses are now open to be copied. All the trademarks are open to be infringed.

In Russia, a business is running with the same trademark of that of the McDonald’s that is not McDonald’s. Since, McDonald’s is a big brand and has huge economic value; this fake business using the trademark of McDonald’s can cause great loss to the country and if such infringements are more in number it can cause significant loss to the economy as well.

Current situation regarding IP suspension in Ukraine as Conclusion

The working of IP in Ukraine is affected and operation is not running in full speed like old times. As of September 12, 2022 Ukrpatent continues to work that is the IP office of Ukraine but the Patents Board of Appeals has ceased the operation. Ukrpatent though continues to work but there is a lot of change in the operation of the office. It has suspended physical operation which means physical filing of IP in the country is suspended. On April 5, 2022 a notification was issued by the director of department of examination of applications for inventions, layout designs and utility models stating that all the applicants must send their email ids with the application to receive their documents/notifications on time. This notification has been issued to prevent delay in receipt of documents on time because of the in operation of Ukrpatent in physical mode. Those who fail to provide email address, their documents will be withheld by the IP office until physical operation resumes were also conveyed by the office.

Now, if we speak about IP suspension specifically, on April 1, 2022 The Ukrainian Parliament passed a law “On Protection of Interests of Intellectual Property in Martial Law” (Law No 7228)[i] which has suspended all the rights and deadlines related to filing of IP and also deadlines of acquisition of IP.

This step is the most significant step to deal with the emergency situation in Ukraine right now because it will ease the difficulty in access and availability of medical products which is need of the hour.

Author: Aditi Manya, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFRENCES

[i] The Status of Intellectual Property in Russia and Ukraine; https://www.inta.org/resources/the-status-of-intellectual-property-in-russia-and-ukraine/#:~:text=The%20Ukrainian%20Parliament%20passed%20a,acquiring%20these%20rights%2C%20are%20suspended. ; October 12, 2022.

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