On March 20, 2023, the parliament of Ukraine amended a number of laws to strengthen the protection of intellectual property rights.
In particular, amendments were made to the Civil Code on the regulation of intellectual property protection by the court. The court can make a decision, in particular, about:
– withdrawal from civil turnover of goods made or entered into a civil turnover in violation of intellectual property rights and destruction
– removal of materials and tools that were used mainly for the manufacture of goods with intellectual property rights, or the removal and destruction of such materials and tools at the expense of the person who committed the violation (the destruction occurs at the expense of the offender);
– application of one-time cash payment instead of applying other ways of protecting intellectual property rights. The use of one -time cash payment shall be made at the request of the defendant, provided that the intellectual property right is violated by the defendant inadvertently and without negligence and that the use of other methods of protection is disorderly damage caused to the plaintiff.
The amount of a payment is determined by the court as the amount of remuneration, which would be paid for granting the plaintiff’s permission to use the intellectual property rights in which the dispute arose, and reasonably satisfying the plaintiff
In the Economic Procedure Code and the Civil Procedure Code appear a new article “Requiring individual evidence in cases of violation of intellectual property rights”.
According to it, upon a motivated request of the participant of the case, the court may decide on the demand of evidence in the form of information on the origin and network of distribution of Intellectual property rights.
It is also established that at the request of the TM certificate, the geographical indication, the utility model, the patent for the invention, and the registered or unregistered industrial design, such violation must be terminated, and the offender is obliged to compensate the rights owner of the property damage by compensation or payment of compensation and payment or caused by moral harm.
The amount of damages is determined by the court, taking into account the lost benefit or income received by the offender as a result of a violation of the owner’s rights.
The amount of compensation is determined by the court on the basis of the amount of violation, guilt of the offender, and other circumstances of significant importance. However, the amount of compensation may not be less than the amount of remuneration that would be paid for granting permission to use the rights to the object in which the dispute arose.
If the violation of rights occurred inadvertently and without negligence, the amount of compensation is equal to the amount of remuneration that would be paid for the granting of such permission.
Compensation recovery is applied by the court instead of compensation for damages at the discretion of the right holder.
The Law on Copyright and Related Rights provides in particular that regardless of the alienation of property rights for the execution the executor has the right to fair remuneration for relevant methods of use.
Without the permission of the subject of property-related rights to execution, but with the payment of fair remuneration to the executors, such use of phonograms, and videograms that contain appropriate execution is possible:
– public performance of the phonogram;
– public phonogram notification;
– public demonstration of videograms;
– public videographer notification.
The right to fair remuneration belongs only to the executor, goes only to the heirs of the performer, and cannot be transferred (alienated) to other persons.
The fair reward of the contractor is 50 percent of the income from the rights concerning the use of the relevant phonogram or videogram and is determined in accordance with the Law of Ukraine “On Effective Management of Property Rights of Copyright and (or) Related Rights.” The remaining 50 percent of the specified income from the rights belongs to the manufacturer of the phonogram or the manufacturer of the videogram, which contains appropriate execution.