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27 July 2022TrademarksAgnieszka Sztoldman

INTA's Ukraine TM: the power of symbolic IP gestures

The  International Trademark Association (INTA) recently  submitted a trademark application for the word mark ‘INTA’ with the Ukrainian Patent Office, showing its continuous humanitarian support for the people of the conflict-ridden country.

This move demonstrates the IP community's support for Ukraine and is consistent with earlier initiatives by the  EU Intellectual Property Office and other local IP offices to sever ties with the Russian Patent Office and extend the filing deadlines for Ukrainian businesses and individuals.

The trademark application aligns with INTA's mission to provide IP education and bring together the IP community in Ukraine.

And, especially in this war-torn country, registering an INTA trademark in Ukraine shows much-needed support for Ukraine as an autonomous, sovereign state—emphasising the social function of IP law.

Society and state

IP law is commonly conceived as a mechanism for balancing competing rights and interests in respect of inventions, signs of commercial origin, or aspects of product appearance, among others. IP systems, and the laws on which they are based, protect individual rights and interests, promote innovation, culture, creativity, the smooth functioning of competitive markets, freedom of expression, and social and political participation.

So, while IP rights satisfy most definitions of private rights by reason of their enforceability against other individuals, they also have a strong public law dimension in their conferral of rights and obligations on individuals towards society and the state.

IP rights are protected through additional legal mechanisms by which people are excluded from resources and the way in which these mechanisms work together affects the need for intervention by the state through the recognition and protection of property.

Serious flaws in the IP system

The social role that IP rights play tends to be particularly evident at times of crisis. When striking a balance between the protection of IP rights and social stability, or considering how the various IP rights frameworks can foster innovation while ensuring access in times of need, we can look to the discussions on the IP waiver, patent pools, patent pledges, compulsory licensing, or governmental uses.

Over the past few years, the  World Trade Organization’s (WTO) Council on  Trade-Related Aspects of Intellectual Property Rights (TRIPS) has highlighted the need for discussion to raise understanding of how the IP system may be more sensitive to public interest issues.

The SARSCoV-2 pandemic has shown additional serious flaws in the IP system, particularly with regard to the policies governing medicine access.

So far, we have taken stock of the lessons learned from how the IP rights system has fared in response to this unprecedented global crisis, which continues to unfold.

The social function of IP rights results in two dimensions: first, territoriality, which governs domestic IP-related legislation; and second, an international framework, such as the TRIPS agreement, which imposes certain IP policy standards on states and mutual relationships between states.

The territoriality principle serves as the cornerstone of IP.  A trademark registration for the same good or service that is granted in one state only has validity in that state due to the territorial nature of industrial property rights. The trademark owner must register his trademark in each of these states in order to protect it there.

The owner's rights are granted in accordance with the laws of that state. Any infringement of INTA's trademark rights will be adjudicated in accordance with Ukrainian territorial law, and territoriality affords state sovereignty.

Symbolic and strategic

Consequently, this filing is not only symbolic but also somewhat strategic in nature, allowing INTA to actively oppose any potential acts of “expropriation” of IP rights on Ukrainian territory and play an active role in closely monitoring the IP ecosystem in Ukraine.

This also enables INTA, as a leader in the IP community, to enforce post-war restoration of IP protection, in line with high standards.

The role of the international IP framework, including adjudication organisations, is to establish fundamental rights and other principles that are pertinent to IP. This legal framework consists of the laws, treaties, and rulings handed down by the courts of the recognised international communities.

Reducing territorial limits to promote peace and prosperity in the relevant region has been a major driver of the IP context's desire to integrate domestic systems. A high level of IP rights protection became a requirement for involvement in the global market by means of the TRIPS agreement.

States that are a part of the TRIPS agreement include both Ukraine and Russia. The agreement requires its member states to maintain certain minimum standards of IP protection for their own nationals and for the nationals of all other member states.

The TRIPS Agreement is subject to the WTO dispute resolution mechanism, creating an international forum for resolving disputes between countries regarding the meaning of its IP provisions.

So the message is clear: never undervalue what can be achieved with even symbolic gestures when it comes to IP systems, as demonstrated by INTA's trademark application.

Agnieszka Sztoldman is counsel at Osborne Clarke Poland and adjunct professor at the University of Wrocław. She can be contacted at  agnieszka.Sztoldman@osborneclarke.com

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