Intellectual property is a part of civil law that combines industrial property, copyright and related
rights, trademark and confidential information.
It is well known that in the countries of the European Union and North America special attention
has always been paid to the observance of intellectual property rights. There is a constant and
continuous struggle against piracy, plagiarism and other actions that violate or threaten to violate
copyright.
Unfortunately, among Ukrainian citizens, the awareness level of the importance of protecting
intellectual property rights is rather low. Moreover, Ukraine is practically the leader in the rating of
the states, violating intellectual property rights, and is included in the list of «pirate» countries. In
Ukraine, intellectual property is a relatively new part of the legislation. Nevertheless, it should not
be forgotten that the protection of intellectual property rights is provided by the legal norms of
various fields of law. For example, the Civil Code contains definitions, content and types of such
rights (fourth volume «Intellectual Property Law», chapters 75 and 76). At the same time, the
peculiarities of property relations regulation regarding the use of intellectual property rights are
specified in the Commercial Code (Chapter 16). It is worth noting that, in addition, there are certain
separate laws of Ukraine which regulate certain aspects of intellectual property rights. For example,
the Law of Ukraine «On State Regulation in the Field of Technology Transfer» or the Law of
Ukraine «On Copyright and Related Rights”.
At the same time, it should be noted that in the legislation, despite such a large number of laws and
codes regulating the protection of intellectual property rights, there is no clear principle of damages
and compensation calculation.
In recent years in Ukraine, considerable attention has been paid to the observance of intellectual
property rights. In 2016, well-known Ukrainian sites were closed as containing content that was
violating copyright: the ex.ua file exchanger and the online resource fs.to; in early 2017, the Law of
Ukraine «On State Support for Cinematography in Ukraine» was adopted, enabling owners of
copyright to block illegally posted on the Internet video quickly. In addition, in 2017, an initiative
was launched to establish the High Court on Intellectual Property Issues (HCIPI).
In general, such courts are a widespread practice. There are about 90 such courts in the world, and
although they have different names, the scope of their competences is approximately the same. The
creation of these courts was caused by the accession of different states to the WTO and their
accession to the TRIPS. And while it does not oblige states to set up courts that regulate intellectual
property issues, many states have made such a decision on their own initiative.
Earlier cases on intellectual property issues were considered by commercial courts. However, in
September 2017, the Decree of the President of Ukraine «On the Establishment of the High Court
on Intellectual Property Issues» was issued, and recently a new edition of the Code of Commercial
Procedure of Ukraine was adopted, in which the rules and its jurisdiction are defined.
Therefore, HCIPI will consider cases concerning the recognition of a well-known trademark, the
rights to an invention or trademark, cases of protection against unfair competition in the field of
intellectual property rights, cases concerning the registration, continuation or cancellation of
patents, disputes over copyright, contracts, regarding the disposal of proprietary intellectual
property rights.
In addition, economic courts will now consider cases not only between business entities, but also
between individual parties, which are not entrepreneurs. (Part 2, Article 4 of the Code of
Commercial Procedure).
Although such a court is a significant and important step for the Ukrainian judicial system, there are
still some shortcomings that should be noted.
The first such disadvantage is the territorial remoteness. According to the Presidential
Decree, HCIPI will be located in Kyiv, and this will immediately cause problems with
access for many citizens.
Secondly, this Supreme Court will deal, in particular, with the case of recognizing trademark
as well known. The problem lies in the fact that there is no clear procedural mechanism for
this.
Thirdly, the main requirement for judges is a three-year record, but it is never indicated that
the experience should be in the field of intellectual property. Finally, no need need for a
specialist who would possess practical knowledge of applying intellectual property rights is
specified.
Thus, we can conclude that the implementation of such reforms is a long and complicated process,
which requires a lot of coordination, corrections, adjustments and innovations. Even if you create
such a new judicial body, provided all possible details and shortcomings are counted up to the
smallest detail, it will still take time to gain sufficient experience in the field of intellectual property
itself. No less time is needed for individuals and legal entities in order to get used to working under
the new system and all the innovations, as well as begin to trust the competence of the new body.
Reputation and trust is something that only comes with time. You can doubt certain innovations,
new workers, new systems. However, there will always be such specialists whom people will ask
for advice. Our team of lawyers is always ready to provide you with highly qualified legal
assistance, regardless of whether the old system or the new one is current.]]>
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