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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