‘Made in Ukraine’ Trademark. First Public Collective Trademark? With Cashback

According to Article 8 of the Ukrainian Advertising Law, it is expressly forbidden to misleading use or imitate the State Flag of Ukraine in advertising. The State Flag of Ukraine has a right-angled width of two equal horizontal stripes (top and bottom), where the top stripe is blue and the bottom stripe is yellow. The aspect ratio (height-to-width ratio) is 2:3.

There are no exceptions from the above general prohibition, including for the cases where the flag is intended to be used dignifiedly. Well, there can be one. Soon.

On 26 February 2024, the President of Ukraine announced the launch of a new Economic Platform, ‘MADE IN UKRAINE’ (“Platform”). The purpose of the Platform is, among others, to stimulate the business activity of Ukrainian manufacturers and to promote Ukrainian products. In particular, the Platform encourages (allows) Ukrainian manufacturers to mark their products with the “MADE IN UKRAINE” mark (“Mark”) to stimulate consumers to buy products of Ukrainian origin marked with the Mark. The rationale behind the Mark’s use is not limited to appealing to patriotic feelings. The consumers are expected to receive cashback for buying such products (“TM Use Rules”).

The Ukrainian Government announced what Mark would look like. On 23 February 2024, the Ukrainian Government approved the reproduction of the Mark (Resolution No. 197) (featured below).

What are the eligibility criteria to use the Mark?

The TM Use Rules are expected to be released by the end of 2024, so Ukrainian manufacturers will have time to prepare. The Ministry of Economy of Ukraine is drafting a brand book (technical standard). It will provide the general concept of using the Mark. The TM Use Rules are expected to also cover the right to use the Mark in advertising and marketing.

In addition to the technical requirements, the TM Use Rules are expected to include the absence of tax debt and any connections with Russia and Belarus. It is not yet clear how interested businesses should join the Platform; respective clarification will be followed.

What goods and/or services are eligible for the Platform?

On 07 March 2024, the Ministry of Economy of Ukraine filed a trademark application for the Mark for most of the goods in classes 1 through 32.

Notably, registration for goods in class 13 (firearm; ammunition and projectiles; explosive substances; fireworks), class 33 (alcoholic beverages, except beers; alcoholic preparations for making beverages) and class 34 (tobacco and tobacco substitutes; cigarettes and cigars; electronic cigarettes and oral vaporisers for smokers; smokers’ articles; matches) is not sought for the registration. Therefore, the goods in classes 13, 32, and 33 are unlikely to be eligible for the Platform.

Who is eligible for use the Mark?

Any state and local government bodies, privately owned legal entities, institutions, and organisations may use it for free. There are no limitations for Ukrainian legal entities owned by non-Ukrainian citizens and legal entities (Russian and Belarussian residents do not qualify for the Platform due to the sanction laws).

Notably, individuals and private entrepreneurs under Ukrainian law are not listed among those allowed to use the Mark.

What other initial considerations should be taken into account?

• The Law of Ukraine, “On State Aid for Business Entities” (considering limitations due to wartime in Ukraine) may apply to the Platform and businesses wishing to join it.
• Use of the Mark by non-eligible businesses might be treated as unfair business practices or the distribution of misleading information, which can result in respective liability under consumer and competition laws.

Information in this overview is for general information purposes only, does not constitute legal or other professional advice, and should not be relied upon as a substitute for specific professional advice tailored to particular circumstances.