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Editorial

General requirements to advertising in Ukraine

The main legal act regulating legal relations in the field of advertising is the Law of Ukraine On Advertising. The implementation of the Law in practice requires a detailed analysis and practical experience. The fulfillment of the requirements of the Law and other regulatory legal acts regulating advertising relations in Ukraine is a guarantee that government agencies in Ukraine, such as the Antimonopoly Committee of Ukraine, the State Inspection of Consumer Protection of Ukraine will not be able to start an advertiser's check.

Compliance with legal requirements to advertising

Thus, one of the practical requirements to advertising is the adherence to the advertising language in advertising materials. The advertising language in Ukraine is Ukrainian. It should be noted that in cases where an advertiser promotes foreign trademarks for goods and services (TM) registered in accordance with Ukrainian or international law, such advertising is presented in the form in which the advertiser's TM is registered.

When advertising goods, works or services, the advertiser must pay attention to the following requirements and prohibitions to advertising in Ukraine, in particular:

·         it is prohibited to use images of the State Coat of Arms and the flag of Ukraine, including images of state symbols of other states;

·         information on prices for goods, for services, provided in advertising, which is placed or distributed on the territory of Ukraine, is indicated exclusively in UAH;

·         in case where goods or services require a license or permission, it is prohibited to advertise such goods and services without a license or permission from the advertiser;

·         it is prohibited to place an image of an individual or use his/her name without the written consent of this person;

·         advertising on conducting contests, lotteries, prize drawings, events of advertising character, should contain information on: the dates; venue of these events; the information source (the name of the site, etc.);

·         advertising of the image of any weapon or military equipment is prohibited, except for specialized publications, exhibitions;

·         advertising should not be hidden;

·         it is prohibited to use the means and technologies that could affect the subconscious mind of advertising consumers;

·         it is prohibited to discriminate persons who do not use the advertised product;

·         advertising of pornographic materials (including pornographic performances), prostitution, as well as advertising containing elements of cruelty, violence, cynicism, humiliation of human honor and dignity is not permitted.

Copyright compliance

The Law of Ukraine On Advertising stipulates that advertising materials and their content must comply with the requirements of the current legislation on copyright and related rights. All components of the promotional material, in particular: design; fonts; images of individuals; musical compositions in the video; voice announcement of the commercials; images of modern architectural objects; the image of someone else's TM, etc., should not in any way violate the rights of persons, holding copyright or related rights to the above-mentioned components. It should be noted that there are copyright objects that do not fall under the protection of the current legislation. These objects of copyright include, in particular: works of folk art; image of the banknotes; works (musical, photographic, artistic, etc.) that were given by their authors to the public domain.

The protection by copyright holders of their objects of copyright and related rights in advertising in Ukraine is carried out in court. In case of the existence of substantiated evidence of the unlawful use by the advertiser of the object of copyright in advertising, in advertising materials, the court is entitled to make a decision, stipulating in particular: compensation to the right holder of damages caused by copyright or related rights infringement; collection from the advertiser of the income, received as a result of rights violation in favor of the right holder.

Compliance with unfair advertising requirements

In accordance with the advertising law in Ukraine, unfair advertising is prohibited. Unfair advertising may mislead consumers, harm people, society due to inaccuracy, falsehood, ambiguity, exaggeration, violation of the requirements regarding time, place and method of distribution. Responsibility for unscrupulous advertising is borne by the guilty person, usually by an advertiser. Distribution of misleading information, first of all, in advertising, in particular, misleading advertising of medicines, foodstuffs, etc., can pose a threat to life and health of citizens, unscrupulous advertising of financial services – lead to loss of consumer money savings.

The most typical violation is the violation by advertisers of Article 15-1 of the Law of Ukraine On Protection against Unfair Competition, according to which the dissemination of misleading information that could be incomplete, inaccurate, false and could affect the intentions of the consumers for the purchase (order) or sale (sale, supply, execution, provision) of  advertiser’s’ goods, works, and services.

An illustrative example of disseminating misleading information on food packaging - the company produced and sold a sour cream product on the territory of Ukraine under its own brand under the guise of a natural dairy product – sour cream. In particular, on the packages of the sour cream, the company did not indicate important consumer information about the type of product - the product of sour cream containing vegetable fats, in contrast to the true sour cream. Since consumers could confuse this product with real sour cream, such information could mislead consumers that is a gross violation of advertising law and is unfair advertising.

Penalties for advertisers

The content of the promotional material, before its official placement, should be thoroughly checked by the advertising law experts for its compliance with the requirements of the current legislation on advertising, and in case of any violations detection – their early elimination and prevention of negative consequences for the advertiser.

There are following penalties for advertisers: 1) for violating the requirements of the advertising legislation – a fine of five times the cost of manufacturing or placing advertising containing violations; 2) dissemination of unfair advertising – a fine of up to five percent of the advertiser's income (revenue) for the previous year; 3) violation of copyright in advertising – compensation to the right holder of all losses incurred, lost income, compensation, based on a court decision.

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