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1. Reasons for violation of rights
Violation of intellectual property rights today occurs both in relation to known objects and not known, but at a certain moment needed by the violators.
There may be several reasons for the violation:
- it is difficult to find the rights holder's contacts;
- it was not possible to agree with the owner of the rights;
- reluctance to pay for the gains of others;
- obtaining an illegal benefit;
- misleading the consumer (anti-competitive actions);
- lack of understanding that a person violates rights by his actions.
2. Types of violation of rights
By territory:
- on the Internet;
- on Ukrainian territory;
- outside Ukraine.
- by type of violation:
- copying (use as is);
- creation of a similar object;
- import / export of goods containing objects illegally introduced into civil circulation;
- submission for registration of the object as one's own
- other
3. Bodies protecting rights
In general, the following main institutions can be identified to which you can apply for the protection of your rights:
- Courts of Ukraine;
- Antimonopoly Committee of Ukraine;
- National Police of Ukraine (including the Cyber Police of Ukraine);
- The State Customs Service of Ukraine (provided that the object is entered in the relevant register);
- National intellectual property body (submission of an objection to an application);
- Arbitration court (if stipulated by the terms of the contract);
- International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine (if stipulated by the terms of the contract).
4. Responsibility
In Ukraine, civil law is provided for the violation of intellectual property rights (the Civil Code of Ukraine and special laws on the protection of specific objects - recognition of the right, imposition of a ban on the use of the object, imposition of a fine, collection of compensation or penalties, termination of the contract, blocking of the resource on which violation of rights, etc.), administrative (Article 51-2 of the Code of Administrative Offenses Violation of rights to an object of intellectual property rights - a fine of UAH 850-5100 with confiscation of illegally manufactured products and equipment and materials intended for their manufacture; also, for certain types of violations, liability is provided for in Articles 164-3, 164-6, 164-7, 164-17 and 164-18 of the Code of Criminal Procedure), criminal (Article 176 of the Criminal Code of Ukraine Violation of copyright and related rights - from a fine of 5100-51000 UAH to imprisonment for up to 6 years; 177 of the Criminal Code of Ukraine Violation of rights to an invention, utility model, topography of an integrated circuit, plant variety - from a fine of 3,400-51,000 UAH. to imprisonment for up to six years; Art. 229 of the Criminal Code of Ukraine Illegal use of a mark for goods and services, a company name, a qualified indication of the origin of goods - a fine from 17,000 to 255,000 UAH) liability
In the cases and in the manner established by law, the court may issue a decision, in particular, on:
- application of immediate measures to prevent violation and preserve evidence;
- stopping the passage of goods through the customs border of Ukraine;
- withdrawal of goods from civil circulation, and destruction of such goods at the expense of the person who committed the violation;
- removal from civilian circulation of materials and tools that were used to manufacture goods in violation of intellectual property rights, or removal and destruction of such materials and tools at the expense of the person who committed the violation;
- application of a one-time cash payment instead of using the methods of protection of the intellectual property right established by clauses 3 and/or 4 (provided that the right was violated unintentionally and without negligence and that the application of the methods of protection established by clauses 3 and 4 is disproportionate to the damage caused to the plaintiff). The size of the one-time monetary payment is determined by the court as the amount of remuneration that would be paid for the plaintiff's granting of permission to use the disputed intellectual property right, and reasonably satisfies the plaintiff;
- application of compensation instead of damages for improper use of the object of intellectual property rights. The amount of compensation is determined in accordance with the law, taking into account the fault of the person and other circumstances of significant importance;
- publication at the claimant's request in the mass media or publicizing by another designated court by means of information on the violation of intellectual property rights and the content of the court decision regarding such violation at the expense of the person who committed the offense.
5. Actions in case of violation of rights
To protect your violated rights, you need both a specialist who understands a specific object of law, and a specialist who can represent your interests in a certain institution with experience in such work.
Protection of rights usually consists of the following stages:
- Development of a legal position;
- Collection of evidence, identification of the offender;
- Preparation and submission of the relevant application to the chosen institution;
- Participation in the application review process;
- Appealing the decision (if necessary);
- Execution of the decision.
The protection of intellectual property rights consists in actions related to the recognition of rights, the renewal of violated rights, the removal of obstacles that prevent the realization of the rights and legitimate interests of the right holder.
Depending on the type of violation, the reason for the violation, the essence, the extent of the violation, one or more methods of protection of the violated right can be chosen.
Therefore, it is desirable to start the work by establishing the reason for the violation of the right to the object of intellectual property.
To do this, we recommend establishing the identity of the violator, forming a legal position and contacting the violator with a claim. If the violator does not agree to settle the dispute in the so-called non-jurisdictional way (negotiate), then it is worth going to court.
You can often face the most common obstacle in the issue of rights protection - establishing the identity of the violator. Especially on the Internet, since there the violator is most often a natural person whose information is hidden for the purpose of protecting personal data.
In order to overcome such an obstacle, in case of refusal by the registrar of the domain name, it is necessary to apply either to the court (asking the court to request information about the registrant), or to apply to the law enforcement authorities with a corresponding statement.
It should be noted that the conditions for granting rights protection, the scope of protection, the procedure for implementation of protection depend on the object of intellectual property rights and the institution in which you request to protect the violated rights. Sometimes a necessary prerequisite for the protection of rights is their entry into a certain register (for example, the Customs register of objects of intellectual property rights that are protected in accordance with the law) or registration (for example, for entry into the Customs register).
The most effective form of protection of intellectual property rights is judicial protection carried out by the general courts of Ukraine (this is the so-called jurisdictional form of protection). In the case of a relevant clause in the contract with the violator, there may be a need to apply to an arbitration court or the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine.
A relatively new form of protection of copyright or related rights on the Internet, which is non-jurisdictional, is an appeal to the owner of a website on which audiovisual works, musical works, computer programs, videograms, phonograms, broadcasts are illegally posted ( programs) of broadcasting organizations.
The applicant applies for the termination of the violation exclusively through the representation (mediation) of a lawyer. The applicant sends the application to the owner of the website, while simultaneously sending a copy of it to the hosting service provider, which provides services and (or) resources for hosting the corresponding website.
In the absence of circumstances provided for in Part 4 of Art. 52-1 ZU On copyright and related rights, the owner of the website must immediately, no later than 48 hours after receiving the application to stop the violation, be obliged to disable access to the electronic (digital) information for which the application was submitted, and provide the applicant and information about the measures taken to the hosting service provider.
Free consultations on the protection of intellectual property rights
We provide consultations on procedures for the protection of intellectual property rights in Ukraine and abroad, as well as written materials.
The following are provided free of charge:
- The first 15 minutes of an oral consultation regarding procedures for the protection of intellectual property rights;
- Standard written materials regarding procedures for the protection of intellectual property rights.
In most cases, free consultations and basic written materials are enough to make a decision to start working with us.