Intellectual property protection: disputes, court practice

Intellectual Property (Disputes)

As important an area for entrepreneurship and the modern world as a whole is the right of intellectual property and its protection, it is equally difficult, unfortunately,   protect it in some places. After all, it is in intellectual law that all intangible property, which concerns both a specific person and business and the economy as a whole, is gathered together – and for legal science, as well as for the average person, it is difficult to define and evaluate what cannot be touched, what cannot be physically measured.

Right now, living in a post-industrial society, where social orientation is valued more for "turnover" and "numbers" of the past, we especially need spiritual values, new knowledge, manifestations of creativity - the real capital of human society. The extraordinary property of knowledge was vividly emphasized by Thomas Jefferson – "He who uses someone's knowledge for his own purposes does not impoverish its bearer, just as using the light from someone else's lamp does not plunge its owner into darkness." The question is only in the forms and limits of this application – how to equally ensure the rights of both parties.

The introduction of innovative, primarily electronic technologies, the need to register fundamentally new objects – domain names, databases, etc., constantly growing  market competition bring to the fore the issue of legal protection of trademarks (TM) and trade secrets – specific types of intellectual property.

The World Declaration on Intellectual Property dated June 26, 2000 defines intellectual property as a set of absolute human rights to goods recognized as intellectual in nature and deserving of protection. Stockholm Convention on Intellectual Property of 1967 to "intellectual property" belongs to:

• scientific discoveries and scientific works;

• industrial samples and useful models;

• literary and artistic works;

• performance of artists, sound recording, radio and television broadcasts;

• trademarks, service marks, trade names and commercial designations;

• protection against unfair competition.

Intellectual property rights are enshrined in Art. 27 of the Universal Declaration of Human Rights. According to Art. 418 of the CCU, intellectual property right is the right to the result of intellectual, creative activity or to another object of intellectual property right. Despite its "intangible" Chapter 16 of the GKU is dedicated to the nature, features of the regulation of intellectual property rights in economic activity.

A whole series of normative legal acts - ZU "On protection of rights to signs for goods and services" dated 05/22/2003, ZU "On protection against unfair competition" dated 07.06.1996, ZU "On copyright and related rights"   dated 23.12.1993, Resolution of the Plenum of VGSU dated 17.10.2012 No. 12 "On some issues of the practice of resolving disputes regarding the protection of intellectual property rights" etc. – dedicated to the protection of intellectual property in all its manifestations, which have their own differences.

Although it is indicative that during the trial of such cases, the presumption of guilt of the party against whom the claim is filed is applied, the specificity of disputes arising from intellectual property mostly requires the conduct of special examinations, because without the relevant knowledge, it can be determined as the very fact of infringement, and the amount of damage caused is very difficult and even impossible. And this, along with gaps in the legislation, is actively used by fraudsters in Ukraine, where respect for property as a "continuation" individuals and the culture of the treaty are currently only in their infancy.

Ch. 5th century 159 of the Civil Code requires a person who has allowed himself to use someone else's commercial name, at the request of its owner, not only to cease such actions without question, but also to compensate for the resulting losses. Part 2 of Art. 494 of the CCU determines that the scope of legal protection of a TM is directly determined by its image and the list of goods and services specified in the Certificate of its state registration, which is the first step in preventing possible abuse – that is why it is so important for specialists to prepare documents for obtaining it, to clearly and carefully comply with the requirements for assigning TM to certain classes of the International Classification of Goods and Services (ICG). It is difficult to overestimate the importance of a brand for business under the current conditions of economic globalization and instant exchange of information flows – individual name of a company or product, behind which is always not only the individuality, but also the reputation of the owner.

Intellectual property actively acts as an object of economic transactions - from usual purchases e-sale and traditional copyright and license agreements before investment in the authorized capital and commercial concession. From an accounting point of view, intellectual property is an intangible asset, and it is very telling that it accounts for 30 to 60% of the value of the assets of the world's largest companies, with a steady upward trend.

Our specialists have considerable experience in the preparation of a package of documents and state registration of TM and are able to provide you with the following services that are extremely important in commercial activity:

• legal assistance in registering rights to objects of intellectual property law (TM, inventions, patents, commercial names, objects of copyright, etc.);

• preparation of a license or sublicense agreement, copyright, publishing agreement (according to the CCU, the owner has both the right to partially transfer or sell his rights to another person, and to grant him a license (permit) to use the rights or their object, with a clear definition of the scope of powers);

• appeal of non-fulfillment of contracts, termination or change of terms of contracts;

• protection of the rights and legitimate interests of the owner of the object of intellectual property rights (recovery of compensation for violation of copyright, TM, brand, trade name, invention, patent, database, computer program).

Moreover, you cannot do without the help of specialists who must have a rather narrow specialization and decent experience in their field in order to protect intellectual property rights in court.

Relevant

Ukraine's signing of the economic part of the association agreement with the EU will fundamentally bring to the fore the issue of possible accusations of domestic manufacturers in violation of intellectual property rights.

It is already predicted today that the agricultural sector and confectionery production will only benefit from these processes, while, say, engineering and processing industries will suffer losses. In addition, compliance with the conditions of global competition will require immediate international registration of TM rights under the Madrid Agreement, provision of international protection of industrial designs under the Hague Agreement, etc. Practically every Ukrainian manufacturer of food products has to audit the names of their products.  It is also envisaged to extend the term of validity of the registered industrial design (up to 25 years).

Therefore, it is difficult to overestimate the role of TM registration specialists, patent attorneys, intellectual property lawyers – big fans of Book IV of the CCU – in increasing the competitiveness of your business.   

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