Institute of Modern Russia

Alexei Navalny’s “smart voting” campaign has been drawing the attention of both Russian voters and the government since its launch in late 2018. The campaign’s idea is simple. Candidates from the ruling pro-Kremlin United Russia party regularly gain the majority of votes in elections—by both fair and unfair methods. The few “systemic” (i.e., approved by the Kremlin) political parties are mostly forced to compete for the remainder of the votes, often diluting the already slim numbers of opposition-minded voters. Sophisticated bureaucratic and administrative barriers have also been put in place to prevent non-systemic opposition candidates from even registering for the election. To overcome this dead-end situation, Navalny came up with a simple and effective solution: to prevent a United Russia candidate from winning, all opposition votes should be joined together to support the runner-up; and given that cumulatively, the number of opposition-minded voters is higher than that of the loyalists, such a candidate can have a real chance to win.

Political analysts still argue about its effectiveness: some believe that the results are mixed, others that the outcome is worth it. Both political scientists and the media agree that the campaign does influence election results. According to Navalny’s close associate Leonid Volkov, in 2019, the “smart voting” campaign, which functions as an online platform and an app that predicts the most likely challenger of the United Russia candidate, supported 800 candidates in the elections—15 percent of them won. In 2020, 12 percent of candidates won, out of 1200; this year, it will support 1300 candidates. Clearly, these statistics are unacceptable to the regime.  

Earlier this year, Moscow courts recognized Navalny’s Anti-Corruption Foundation (FBK) and his regional campaigns network as extremist organizations, but apparently this was not enough for the government. Two weeks before the parliamentary elections, which will take place September 17-19 this year, the government launched an attack on the “smart voting” system. As usual, it turned out to be clumsy and cynical, although a veneer of legality was maintained. Formally, the court decided to block the “smart voting” results in search engines (Google and Yandex, Russia’s most popular platform) following a complaint filed by a newly registered owner of the “smart voting” trademark.

It turns out that in late June, a little-known company, Woolintertrade, based in a small town in southern Russia, applied to register the trademark for Navalny’s app namesake, which included the words “smart voting” in blue ink and an exclamation point in red. Why a company that sells sheep wool needs such a trademark remains a mystery, as does its reasoning behind registering it for all possible classes of use. But according to media reports, the company’s owners are connected with law enforcement agencies.

The speed with which the registration has been processed is just one factor confirming this alleged connection. The application to register the trademark was filed to the Federal Service for Intellectual Property (Rospatent) on June 29, to be granted a month and a half later, while normally it takes at least three months. Rospatent can expedite the process, but it will still be two months. The Proright project, specializing in trademark protection, believes this was the fastest trademark registration ever in Russia. Anyone who has dealt with state bureaucracy in the country knows that nothing is done quickly there. Bribes can speed up the process, but in terms of efficiency, nothing can be compared to exerting influence, especially coming from the security services. 

The decision to register the trademark raises other questions. For example, paragraph 2, part 1 of Article 1483 of the Civil Code of the Russian Federation clearly prohibits the registration of a trademark that features generally accepted symbols and terms, such as the words “smart voting” and the exclamation point. This didn’t stop Rospatent, which could, of course, argue that the generally accepted symbol of “smart voting” has acquired distinctiveness due to its use; however, Woolintertrade has nothing to do with it. The fact that the term “smart voting” and its visual representation have an author who created it long before this dubious trademark registration didn’t bother Rospatent either, although paragraph 1, part 9 of Article 1483 of the Civil Code prohibits trademark registration without the consent of the copyright holder.

Finally, since the “smart voting” project is affiliated with FBK, which has been recognized as an extremist organization, some lawyers believe that the campaign itself may be seen an extremist. The recent crackdown on “smart voting” by Roskomnadzor and law enforcement agencies confirm this theory. The paradox, then, is that Rospatent registered a trademark that could be associated with an extremist organization, thus contradicting with the entire government’s approach to extremism. 

But the bizarre developments did not end there. On September 1, the newly minted trademark owner sued Google and Yandex in the Moscow Arbitration Court. Judges Krikunova and Kozlenkova started the proceedings within two days. Interestingly enough, within the next week, these judges proceeded with none of the other claims assigned to them that day. On September 3, the plaintiff filed a motion for a preliminary injunction, which was granted the same day. And that was the most surprising thing. According to a 2018 study (the most recent available data), the Moscow Arbitration Court was the least likely court to grant a preliminary injunction in all of Russia, granting such motions at a rate of less than 8 percent, compared to an average of 44.5 percent. Three years later, obtaining a preliminary injunction in Russia has become even more difficult, which was recently pointed out by a leading Russian legal scholar and lawyer, Roman Bevzenko, in his telegram channel. One can only guess why Woolintertrade was so lucky as to have its motion granted.

A vast number of questions still remain. As I wrote earlier, in another article for IMR, Russian courts usually mindlessly “copy and paste” entire paragraphs from legal codes without clarifying why and how these laws should be applied in a particular situation. Granting Woolintertrade’s motions is a perfect example of this approach. For example, Judge Kozlenkova dedicated two out of three and a half pages of her opinion to provide an overview of the Arbitration Procedure Code provisions and case law regarding preliminary injunction, while her analysis of the application of the law to factual circumstances of the case was reduced to one sentence of a very general nature: “failure to take appropriate measures ... may cause significant damage to the plaintiff.” The judge was not even sure the plaintiff will suffer damage. The court did not explain who is inflicting damages on the plaintiff or how the search engines’ results to the query of “smart voting” could affect the plaintiff. The court did not discuss its method of calculating “significant damage,” nor did it analyze what compensation the plaintiff should receive. Judge Krikunova did approximately the same thing when she overwhelmed the readers of her opinion with many statutes and examples of case law, avoiding specifics of the actual case. Additionally, in granting the preliminary injunction, the court allowed the plaintiff to win instantly, since the injunction and the claim demanded the same things. It should be noted that this is a new technique that allows a plaintiff to bypass any formalities and achieve their aims without any proceedings on the case’s merits.

I hope that sooner or later, the trademark registration will be canceled, and the court will deny the claim, because these shameless activities turn law into a farce. Even if Woolintertrade wins (by exerting influence) and Alexei Navalny’s associates cannot challenge the trademark registration, they will have a strong case to take before the European Court of Human Rights. But all of this will happen after the elections…

* Igor Slabykh is a lawyer and manager with eighteen years of experience in Russia and the U.S.; he holds a law degree from the Moscow State Open University and an LLM from the George Washington University Law School.