Pressure for pressure’s sake

In quest of a monopoly on the term ‘foreign agent,’ state-owned RT goes after a small clothing brand that partnered with Meduza

The state media holding RT (Russia Today) is trying to obtain a legal monopoly on the Russian term for “foreign agent.” The television network trademarked “inostranny agent” in 2020, and late this spring it moved to patent its shortened form, “inoagent.” In October, RT’s lawyers sent a claim letter to a small brand that put the words “innostranny agent” on a t-shirt. The Moscow-based Feelosophy Store had launched a line merch in support of Meduza — and it’s just one of many small companies that have brought out foreign-agent themed products to express support for NGOs and media outlets blacklisted under this label. If Russian courts side with RT, only the state-run television network will be able to sell t-shirts, keychains, stickers, and other products featuring this term. That said, some lawyers believe that RT’s intellectual property rights could be disputed. To find out more, Meduza takes a deep dive into RT’s quest to privatize this repressive “brand” created by the Russian state.

Please note. This article was originally published in Russian on November 19, 2021. This translation has been abridged for length and clarity.

On October 30, Feelosophy Store received a letter from RT (Russia Today). It demanded that they stop selling “counterfeit” merchandise and pay the state-run television network half a million rubles (approximately $6,700) in compensation.

The “knockoff” RT was referring to is a neon-yellow t-shirt with the words “inostranny agent” (the Russian for “foreign agent”). The Moscow-based clothing store released the t-shirt in August 2021, in support of Meduza and other individuals and organizations that the Russian authorities have blacklisted. It was among the items available for sale through Meduza’s own merchandise shop.

“I opened [the envelope] and inside there’s a long claim,” recalls Feelosophy founder Georgy Saribekyan, speaking to Meduza. “Turns out, RT registered the phrase ‘foreign agent’ as a trademark — and now the television channel owns the rights to its use literally everywhere.”

Attached to RT’s multi-page claim was an extensive list of products that can’t feature the words “foreign agent” — it included bizarre entries like “liveries” and “rafts.” “I re-read the list when I’m bored and want to have a laugh: RT is a big corporation, of course they wanted to look scary to us — but [the claim letter] turned out to be funny,” Saribekyan says.

RT launched its own online store back in 2018. Its range of products features a line of “foreign agent” merchandise — including black t-shirts with the words “inostranny agent” and “foreign agent” (Meduza was unable find a patent for the English phrase registered to RT). In a statement, the network explained that this line of merch was a response to the U.S. authorities demanding that RT America register with the justice department as an agent of a foreign government in 2017. However, the television network didn’t acquire the intellectual property rights to the phrase until June 2020.

Feelosophy Store wasn’t aware of RT’s line of t-shirts. “To be honest, we didn’t check,” says Saribekyan. “It would never have occurred to me that words from legislation could be registered as a trademark.” In its claim, RT calls Saribekyan’s t-shirts “counterfeits” and, citing Article 1515 of Russia’s Civil Code, reminds the retailer that they have the right “to demand the seizure” and “destruction” of such goods.

Intellectual rights lawyer Artem Lebedev told Meduza that Feelosophy’s “foreign agent” t-shirts could indeed be confiscated. And Georgy Saribekyan says his tiny shop, located in Moscow’s Kitay-Gorod neighborhood, is in no way prepared for a police raid. “We’re renting a basement,” the Feelosophy Store founder underscores. “How could we be prepared for this?”

A ‘political thing’

Georgy Saribekyan says that his team isn’t in the habit of consulting with lawyers before launching a new product — and this is despite the fact that RT’s claim is the sixth one they’ve received. “Yes, we’re walking on thin ice,” he admits, recalling past complaints from Moscow’s Tsvetnoy Central Market and Red Bull (his store made a version of the energy drink’s logo that said “Bull Shit”).

At the same time, Saribekyan says that RT is the first company to demand any monetary compensation — let alone half a million rubles ($6,700). Prior complaints simply asked Feelosophy Store to stop selling the disputed merchandise. “Besides, the last five times we really did take someone’s logo or album cover [as the basis for the print] — and in the case of RT, we didn’t have any reference to their products or even their fonts,” Saribekyan adds.

RT’s complaint doesn’t look like an attempt to resolve the conflict peacefully and in good faith, Saribekyan’s lawyers maintain. “On the contrary, the demand for payment of unreasonable and excessive compensation, and giving false urgency to this demand should be regarded as misconduct and abuse of the law,” Feelosophy declared in its official reply to RT (seen by Meduza).

The television network demanded that the clothing store pay compensation within “seven days of the receipt of the claim” — a period three times shorter than what’s established by law for a pre-trial settlement, Saribekyan’s lawyers noted in their response to RT. In addition, the network didn’t provide any justification for seeking such a large amount of compensation.

“Here the amount of compensation exceeds the minimum [10,000 rubles, about $134] fifty times, and the entire justification is limited to the phrase causes ‘significant financial damages’,” points out patent attorney Alexey Bashuk, a partner at the law firm Bashuk Chichkanov, who’s representing both Saribekyan and Meduza. Bashuk also expresses doubts that a small business like Feelosophy Store could actually inflict “significant” damages on a giant, state-backed media holding.

Seribkeyan is convinced that RT’s claim is a “political thing” and an attempt to set a precedent — a way of discouraging other brands from touching the “foreign agent” theme. If the courts side with RT, this precedent will allow the network to file complaints against a number of other companies, agrees Boris Malakhov, a patent attorney from the law firm Lidings.

What’s more, RT has already filed an application to register another trademark. According to the SPARK-Interfax database, on May 27, 2021 (about a month after the Russian Justice Ministry labeled Meduza a “foreign agent”), RT applied for exclusive rights to the use of “inoagent” — the shortened form of the Russian term inostranny agent.

For now, the word inoagent can still be used freely, lawyers told Meduza. But if RT’s patent application is approved, the television channel will be able to take brands to court if they continue to sell merchandise featuring this word too.

Not quite patent trolling

RT’s complaint against Feelosophy appears to be well-founded, three intellectual property rights experts told Meduza. Patent attorney Boris Malakhov also agreed that since the network owns the rights to the phrase “foreign agent,” there’s a high degree of probability that its claim would hold up if the case went to court.

The experts Meduza spoke to also said there’s little evidence that RT is abusing its intellectual property rights — in other words, this isn’t a straightforward case of “patent trolling” either. “Intellectual property is indeed sometimes registered not to protect one’s rights to a brand, but solely to troll competitors: the ‘troll’ doesn’t use their intellectual product themself, but at the same time prohibits others from doing so,” Malakhov explains to Meduza. “This, of course, isn’t a situation of pure patent trolling, seeing as the television channel [RT] does put out t-shirts with ‘foreign agent’ inscriptions.”

In Malakhov’s opinion, this case has more in common with instances where trademarking a political slogan or image served as a means of political censorship. To give an example, the attorney recalls the recent patent dispute between a wool company and Alexey Navalny’s “Smart Vote” brand. “It’s somewhat similar to the Feelosophy’s dispute with RT: a name is being registered that is clearly a politically charged term,” he says.

Though RT and Feelosophy use different lettering on their t-shirts, the courts would only evaluate general similarity — and Malakhov feels the resemblance is pretty apparent. Moreover, the fact that RT’s t-shirts reference America’s Foreign Agents Registration Act (FARA), while Feelosophy’s reference Russia’s legislation on “foreign agents,” won’t matter in court.

“A judge or an expert from Rospatent [Russia’s Federal Service for Intellectual Property] is obliged to evaluate the trademark from the point of view of the average Russian consumer,” patent attorney Alexey Bashuk underscores. “So the name ‘foreign agent’ will be assessed in the most literal sense — without [taking into account] cultural references. After all, consumers don’t care who was referring to what legislation — the average consumer may not even know about it.”

The public interest

At the same time, patent attorney Alexey Bashuk, as well as two other intellectual property rights lawyers, told Meduza that RT’s registration of the “foreign agent” trademark could be disputed.

Patent lawyer Boris Malakhov, for example, expressed doubts that the term was patented in compliance with all legal requirements. Citing Article 1483 of Russia’s Civil Code, Malakhov explained that a trademark can’t be registered if it “contradicts public interest.” This, he says, is one argument that could be made for revoking RT’s patent.

“Would it have been possible, then, to register the phrase ‘foreign agent,’ which at that time of RT’s [patent] application had become a stable not only lexical but also legislative term? The registration of such a trademark could imply obtaining a legal monopoly — and obtaining a legal monopoly on this expression might just ‘contradict public interest’,” Malakhov tells Meduza. (Should the legal battle with RT escalate, Feelosophy would use this very argument in an appeal to the Chamber for Patent Disputes, Bashuk wrote in his official response to RT’s claim letter).

Intellectual rights lawyer Artem Lebedev adds that one could also make a case for “foreign agent” being a “household and/or common term.” “In this case, the inscription on [Feelosophy’s] t-shirts could be regarded as the use of a trademark not to individualize a product, but as a political statement, a message,” he tells Meduza, explaining that mentioning a patented term for informational purposes isn’t illegal.

Be that as it may, Sergey Zuykov — the head of the law firm Zuykov and Partners — believes that the chances of successfully challenging RT’s rights to the trademark are slim, regardless of one’s legal strategy. “As a non-political citizen, I don’t see any problems with registering the ‘foreign agent’ [trademark]: for me it isn’t descriptive and doesn’t contradict public interest,” he tells Meduza.

What will Meduza do?

Meduza has filed patent applications to register the trademarks “inoagent,” “pressa” (press), and “*****”, reports CEO Galina Timenchko.

“This is a forced step,” Timchenko explains. “We know that RT is simultaneously trying to register the trademark ‘inoagent’ and they have the same goals as before: to ruin as much as possible the lives of those brands that dare to cooperate with Meduza. And, of course, to ruin our lives. They did this before, publishing their own ‘investigations’ about how Meduza works — now they’ve come up with a new instrument of pressure. RT is seeking to intimidate our partners, destroy our merch program, and waste our time, which we could be spending on journalistic activity.”

In addition, Meduza is disputing the application to patent “inoagent” that RT filed in May 2021, on the grounds that granting the network exclusive rights to the term contradicts the provisions of the aforementioned Civil Code Article 1483 (this is stated in Meduza’s appeal to the Federal Institute of Industrial Property).

Meduza has no plans to monopolize the terms “inoagent” or “pressa,” even if Rospatent grants our newsroom exclusive rights. “We’re registering these trademarks so that everyone has the opportunity to use them without any restrictions,” says Meduza editor-in-chief Ivan Kolpakov. “If we manage to register them, we will never prohibit anyone from using them. We believe that we — and all citizens of Russia — have every right to evaluate the actions of the authorities in any form. Including by creatively rethinking the various absurd initiatives of government officials.”

“We’re upholding the freedom to use this term — we’re trying to ensure that what has already happened to innostranny agent doesn’t happen to inoagent,” adds patent attorney Alexey Bashuk, who is representing Meduza in the dispute. “Moreover, we are well aware that Rospatent will most likely reject the application to register ‘*****’ — but we are submitting it just to get a refusal. So that no one else can later register this trademark either.”

At present, the Russian Justice Ministry has already designated nearly a hundred journalists and newsrooms as “foreign agents.” Unlike RT, which is considered a “foreign agent” in the United States, they do not receive funding from Russia’s state budget. Meduza’s editorial office is of the opinion that RT is trying to monetize the misfortune of others — to privatize a repressive “brand” created by the Russian state.

“RT is an enormous organization, which receives a colossal [amount of] state funding,” says editor-in-chief Ivan Kopalkov. “RT is putting pressure on the Magaz’s partners and on Meduza, and the goal of this pressure is the pressure itself. In terms of the ethical side of the issue, the registration of the trademark ‘foreign agent’ is like registering the trademark ‘enemy of the people’.”

“Meduza will take all necessary actions to ensure that the phrase ‘foreign agent’ can be used by anyone who wants to use it, including RT,” adds CEO Galina Timchenko. “Regardless of the fact that we find this term disgusting.”

Meduza would like to thank the Feelosophy Store and the other brands that launched merchandise in support of our newsroom. We’re also grateful to our readers for standing by us. Our online store, Magaz, is still open! You can visit it here. And if you’d rather make a recurring monetary donation to Meduza, we gratefully accept those right here.

Story by Liliya Yapparova

Abridged translation by Eilish Hart