PROBLEMS OF EXHAUSTION OF THE EXCLUSIVE RIGHT TO EXPORT UNDER THE LEGISLATION OF UKRAINE

2017 ◽  
Author(s):  
Andriy Yevkov ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Point Of View ◽  
Individual State ◽  
License Agreement ◽  
Legal Norms ◽  
Domestic Legislation ◽  
The Right ◽  
Exclusive Right

The article examines the problems of normative establishment in the legislation of Ukraine of the exclusive right to export goods containing protected intellectual property objects, as well as the conditions and grounds for applying of legal norms enshrining the principle of exclusive intellectual property rights exhaustion to the exclusive right to export. Considering the limitation of the protection of exclusive rights to the territory of each individual state, the paper examines the problems of the territorial aspect (territorial models) of the exhaustion of rights, as well as the influence of exclusive rights to import, distribution and export on the implementation of international trade. The article notes that the right to export is directly established in the current domestic legislation of Ukraine only in respect of certain protected intellectual property objects, and substantiates the view that, given the inexhaustible list of property rights (ways of usage) for many other protected objects, the exclusive right of rightholders to export must also be recognized in respect of such objects. Concerning the implementation of export operations by the licensee the paper substantiates the point of view according to which, if in the license agreement the territory of validity of licensing rights is limited to the territory of Ukraine, then the licensee receives permission for distribution within the scope of this subjective right (i.e. within Ukraine) and, accordingly, is not entitled to export if there are no compelling reasons to consider such a prohibition as a way of restricting competition, abuse of right, etc. Regarding the export of goods by their purchasers after the first legal sale of such goods in a particular country, the paper notes that, despite the lack of direct instructions in the legislation, it can be assumed that the exclusive right to export should be exhausted after the first legal sale of goods containing protected objects, unless there are other grounds to believe that the export of such goods may further harm the rights and essential interests of the rightholder in the country where such initial introduction of goods into circulation took place (in the country of origin of the goods).

While the Treaty does not affect the existence of intellectual property rights, there are nonetheless circumstances in which the exercise of such rights may be restricted by the prohibitions laid down in the treaty. 2. Article 36 permits exceptions to the free movement of goods only to the extent to which such exceptions are necessary for the purpose of safeguarding the rights that constitute the specific subject-matter of the type of intellectual property in question. Perhaps the main advantage of this formula, apart from the fact that it narrows the scope of the exceptions permitted by Article 36, is that it allows subtle distinctions to be made depending on the type of intellectual property in issue. 3. The exclusive right conferred on the owner of intellectual property is exhausted in relation to the products in question when he puts them into circulation anywhere within the Common Market. Spelt out more fully, ‘the proprietor of an industrial or commercial property right protected by the legislation of a Member State may not rely on that legislation in order to oppose the importation of a product which has lawfully been marketed in another Member State by, or with the consent of, the proprietor of the right himself or person legally or economically dependent on him’. The expression ‘industrial and commercial property’ clearly embraces patents and trademarks. It also extends to such specialised areas as plant breeders’ rights. The court has held that copyright can also be a form of industrial or commercial property because it ‘includes the protection conferred by copyright, especially when exploited commercially in the form of licences capable of affecting distribution in the various Member States of goods incorporating the protected literary or artistic work’. The principle that the Treaty does not affect the existence of industrial and commercial property rights is derived from Article 222 of the treaty. This provides that ‘the treaty shall in no way prejudice the rules in Member States governing the system of property ownership’. Consequently intellectual property rights are unaffected by the provisions of the treaty unless they hinder free movement or offend the rules of competition. In Keurkoop v Nancy Kean (see below) the design of a handbag which was manufactured in Taiwan was registered in the Benelux countries but without the authority of the actual author. In Case 78/70, Deutsche Grammophon v Metro-SB Grossmärkte [1971] ECR 487, [1971] CMLR 631, the European Court stated:

1997 ◽  
pp. 110-114
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Member State ◽  
Intellectual Property Rights ◽  
Free Movement ◽  
Member States ◽  
Commercial Property ◽  
European Court ◽  
The Right ◽  
Exclusive Right

scholarly journals THE MODERN VISION OF THE SYSTEM OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE

2021 ◽  
Vol 75 (2) ◽  
pp. 52-59
Author(s):  
Victoria Shekhovtsova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
The State ◽  
Point Of View ◽  
Property Right ◽  
Intellectual Property Right ◽  
Creative Activity ◽  
The Right ◽  
Intellectual Potential

The article is devoted to the research of the intellectual property rights system in Ukraine. Intellectual property is the result of the creative activity of any person or group of people. The author studied the categories «intellectual property» and «intellectual property right», investigated the principles of intellectual property and the system of intellectual property rights of Ukraine. In Roman law, there was the term «property», because the «property right» in its classical meaning was formed in Rome, and related to private relationships. Intellectual property is the property of a person that arose as a result of her creativity. However, for our Ukrainian legislation, the expression «intellectual property» is «terra incognita». Yes, intellectual property is studied by such branch legal sciences as: civil law, administrative law, international law, and others. Formed the State Service of Intellectual Property, but the organization of the state system of legal protection of intellectual property, in our difficult times, wants a better one. In the legal literature on intellectual property issues various definitions of «intellectual property right» are given. From a subjective point of view – this is a subjective right, and from an objective point of view – a civil law institute, a set of legal norms that regulate relations in the system of creation and protection of intellectual property. Man, his freedom and rights are the most important value of evolutionary development of society, which manifests itself in the growth of the intellectual potential of the population of each country. Only man possesses intelligence, creative potential and creative abilities. In addition to it, on earth, no living creature can create. Creative activity is the most important aspect of human life, which allows you to convey your talent to society. The consequence of this activity is something new, unique, unique and original. The accumulated products of the human mind are the heritage of the nation, which determine its further development.The Constitution of Ukraine guarantees to the citizens of the state freedom of scientific, artistic, literary and technical creativity, protection of intellectual property rights, moral and material interests arising in connection with various types of intellectual activity. Every citizen has the right to the results of his intellectual, creative activity; no one can use or distribute them without his consent, with the exception of the statutory provisions. The intellectual potential of the nation, in the form of improving education, production, culture, science and technology, needs constant support from our state. The Civil Code of Ukraine for the first time in our national legislation was given a formal definition of the right of intellectual property, as the rights of the individual to the result of intellectual, creative activity or other object of intellectual property rights.

scholarly journals PENGECUALIAN PERJANJIAN HAK KEKAYAAN INTELEKTUAL DALAM HUKUM PERSAINGAN USAHA

FIAT JUSTISIA ◽  
2016 ◽  
Vol 9 (4) ◽  
Author(s):  
Dani Amran Hakim
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Rule Of Law ◽  
Integrated Circuit ◽  
Business Environment ◽  
License Agreement ◽  
The Rule Of Law ◽  
Article 50 ◽  
The Right

Law business competition in the country Indonesia know the exceptions  to assert that a the rule of law expressed does not apply for those kind certain agents or behavior particular activity. Law competition business environment in general grant an exemption on the basis of agreement , for example agreement intellectual property rights (IPR). IPR is incentives and reason was given the right monopolizes and protection because IPR need resources and time in an effort to get it, based on article 50 alphabet b Law on Business Competition. An exemption based on article 50 alphabet b Law on Business Competition the elaborated competition supervisory commission by issuing commission rules business competition supervisory Law Number 2 of 2009 on Exceptions The Application of the Law Number 5 of 1999 on Prohibition of Monopoly and Unfair Business Competition of a Pertaining to Intellectual Property Rights Scope arrangement based on Commission Rules Business Competition Supervisory Number 2 of 2009 is: (1) the license agreement that is in scope patent, the right brand, copyright, the right industrial design, the right design the layout integrated circuit and the right trade. (2) Trademark and brand services. (3) the design layout integrated circuit. Keywords: Exeptions, Intellectal Property Rights, Business Competition Law

scholarly journals THE USE OF A PATENT BY CO-AUTH ORS AND HEIRS FOR COMMERCIAL PURPOSES AND SOME ISSUES OF PUBLICITY IN PROCEEDINGS RELATED TO DISPUTES OVER INTELLECTUAL RIGHT PROTECTION

2020 ◽  
Vol 3 ◽  
pp. 24-27
Author(s):  
Tatyana V. Ivanova ◽  
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Property Right ◽  
Intellectual Property Right ◽  
Special Method ◽  
Procedural Information ◽  
Protecting Intellectual Property ◽  
The Right ◽  
Exclusive Right

The article considers certain situations that arise while using a patent for an invention by co-authors and successors and some issues of publicity in legal disputes over the protection of intellectual property rights. The invention created by a team of authors serves as the basis for the association of co-authors in an organization aimed at the commercial use of a patent. The exclusive right to a patent shall transfer to the successors, but the right to membership in the organization where the patent was supposed to be used may not be transferred, in which case the successors shall have limited access to information on the use of the patent. Various secrets, confidentiality of information, unavailability of information, complexity of protecting intellectual property rights, complex relationship between members of the organization and successors represent only some of the problems that create obstacles to the normal exercise of the right to use a patent for an invention and to get profit from its use. There is no special method to protect intellectual property right, such as the request to provide access to the information on shared use of a patent. The publicity principle, being one of the principles of legal proceedings, provides the condition for defining the truth in the process of proving, the court provides the conditions for the timely receipt by the participants of the required and sufficient procedural information on a particular case. The publicity of information in a legal case is most likely to provide the opportunity to satisfy a claim for the protection of intellectual property right. The right to membership in the organization, in which the patent was supposed to be used when it had been developed by the co-authors of the organization, can be considered as a guarantee for the right to use the patent. The exclusion of at least one element from this system shall create unequal rights and shall make it impossible to achieve a result — receive profit from the use of a patent.

Exercise of economic intellectual property rights to wellknown trademarks.

2021 ◽  
pp. 62-72
Author(s):  
Olena Tverezenko
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Protection ◽  
License Agreement ◽  
Legal Entity ◽  
State Register ◽  
The Subject ◽  
The Law ◽  
The Right

The exercise of intellectual property rights is the realization bythe subject of intellectual property rights of moral and / or economic intellectual propertyrights, the content of which in relation to certain objects of intellectual propertyrights is determined by the Civil Code of Ukraine and other laws. The exercise of intellectualproperty rights is also the realization of economic intellectual propertyrights by other persons on the basis of the permission of the person who has the rightto allow the use of such object of intellectual property rights.The Law «On Amendments to Certain Legislative Acts of Ukraine ConcerningStrengthening the Protection and Protection of Rights to Trademarks and IndustrialDesigns and Counteraction to Patent Trolling» (which entered into force on August16, 2020) has аmended the Law of Ukraine «On Protection of Rights to Marks forGoods and Services» (hereinafter — the Law). The amendments have removed theprovision that a well-known trademark receives the same legal protection as thetrademark for which the certificate is issued. Such changes have created a gap in thelegislation in part of defining what does the exercising of intellectual property rightsto well-known trademarks include.In this connection the following questions arise: (1) can the right to use a wellknownmark (as well as the mark for which the certificate is issued) be the subject ofa license agreement, a commercial concession agreement; (2) whether it is possible tocontribute economic intellectual property rights to a well-known trademark to the authorizedcapital of a legal entity; (3) whether it is possible to transfer such rights onthe basis of an agreement on the transfer of economic intellectual property rights or to provide as collateral. We believe that these issues should be addressed through theadoption of appropriate amendments to Art. 25 of the Law.In our opinion, the right to use a well-known trademark may be the subject of licenseagreements and commercial concession agreements. According to the currentlegislation of Ukraine, it is impossible to transfer economic intellectual propertyrights to a well-known mark to another person.It is expedient to make changes to Art. 25 of the Law, which would provide necessityof creation and functioning of the State register of Ukraine of well-knowntrade marks.The introduction of the proposed amendments to the legislation of Ukraine in thefield of economic intellectual property will help to improve the relevant legal relationsrelated to the exercise of property rights to well-known trademarks.Key words: trademark, well-known trademark, economic intellectual propertyrights, exercise of economic intellectual property rights, assignment (transfer) of economicrights of intellectual property

scholarly journals PERLINDUNGAN HUKUM TERHADAP HAK PENCIPTA SOFTWARE YANG NOMOR SERIALNYA DIKOMERSIALKAN TANPA HAK DI CYBER SPACE BERDASARKAN UNDANG-UNDANG NOMOR 28 TAHUN 2014 TENTANG HAK CIPTA

2020 ◽  
Vol 16 (1) ◽  
pp. 77-87
Author(s):  
Billy Handiwiyanto ◽  
Wisnu Aryo Dewanto
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Research Method ◽  
Economic Benefits ◽  
Copyright Holder ◽  
Economic Rights ◽  
Cyber Space ◽  
The Right ◽  
Exclusive Right

Intellectual Property Rights consist of various types, one of which is Copyright, Copyright is one of the Intellectual Property Rights that has a broad scope of scope of objects, to the Copyright that is owned, the Author and / or the Copyright Holder get an Exclusive Right on the Work , in which this Exclusive Right consists of 2 (two) types, namely the Moral Right to the Work, and also the Economic Right to the Work. The right to exploit the Work rests with the Author and/or the Copyright Holder of the Work, but there are often violations of the Exclusive Rights in this case the Economic Right which is the Right of the Author and/or the Copyright Holder to obtain economic benefits from the utilization of the Copyright, in which a Work is commercialized without Rights by other Parties who do not have the Right to Commercialize the Work. This study aims to determine the basis of the Liability of those commercializing a Work without Rights, which violates the Exclusive Rights of the Author and/or the Copyright Holder to utilize the Work in order to obtain economic benefits from the Work. This research was conducted using the Normative Jurisdiction research method which examines a problem on the basis of applicable laws and regulations, as well as from views and doctrines in the science of law. The results of this study state that other parties who without the right to commercialize a Work must be held accountable for violating the Exclusive Rights in this case the Exclusive Rights to the Economic Rights of the Author and/or the Copyright Holder.Hak Kekayaan Intelektual terdiri dari berbagai macam jenis, salah satunya Hak Cipta, Hak Cipta merupakan salah satu Hak Kekayaan Intelektual yang memiliki ruang lingkup cakupan obyek yang luas, terhadap Hak Cipta yang dimiliki, Pencipta dan/atau Pemegang Hak Cipta mendapatkan Hak Eksklusif atas Ciptaan tersebut, yang mana Hak Eksklusif ini terdiri dari 2 (dua) macam, yaitu Hak Moral atas Ciptaannya, dan juga Hak Ekonomi atas Ciptaan. Hak untuk mengeksploitasi Ciptaan tersebut terletak pada Pencipta dan/atau Pemegang Hak Cipta dari Ciptaan tersebut, namun seringkali terjadi pelanggaran terhadap Hak Eksklusif yang dalam hal ini ialah Hak Ekonomi yang merupaan Hak dari si Pencipta dan/atau Pemegang Hak Cipta untuk mendapatkan manfaat ekonomi dari pemanfaatan terhadap Hak Cipta tersebut, yang mana suatu Ciptaan dikomersialkan tanpa Hak oleh Pihak lain yang tidak punya Hak untuk Mengkomersialkan Ciptaan tersebut. Penelitian ini bertujuan untuk mengetahui dasar Tanggung Gugat dari pihak yang mengkomersialkan suatu Ciptaan tanpa Hak, yang melanggar Hak Eksklusif Pencipta dan/atau Pemegang Hak Cipta untuk memanfaatkan Ciptaan tersebut guna mendapatkan manfaat ekonomi dari Ciptaan tersebut. Penelitian ini dilaksanakan dengan metode penelitian Yuridis Normatif yang mana meneliti suatu masalah dengan dasar peraturan perundang-undangan yang berlaku, juga dari pandangan-pandangan dan doktrin-doktrin dalam ilmu hukum. Hasil penelitian ini menyatakan bahwa pihak lain yang dengan tanpa hak mengkomersialkan suatu Ciptaan harus bertanggung gugat karena melanggar Hak Eksklusif dalam hal ini Hak Eksklusif terhadap Hak Ekonomi dari Pencipta dan/atau Pemegang Hak Cipta.

Cancellation and Loss of Trade Mark Rights

2017 ◽  
Author(s):  
Annette Kur ◽  
Martin Senftleben
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trade Mark ◽  
Public Domain ◽  
Point Of View ◽  
The Public ◽  
Finite Duration ◽  
Goods And Services ◽  
The Right

Different from other intellectual property rights, rights vested in a trade mark do not have a finite duration; they can last ‘forever’. Under systemic aspects this is due to the fact that as long as the message conveyed by the sign is correct it would be contrary to the interest of consumers to let it lapse and fall back into the public domain. Also, from a competition point of view there is no need to terminate protection as long as the right holder keeps using the sign and the designated goods and services themselves are not subject to market exclusivity.

scholarly journals Desain Indutri Sebagai Karya Yang Dilindungi (HAKI)

2019 ◽  
Vol 19 (1) ◽  
pp. 23-33
Author(s):  
Azhari AR Azhari AR
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
General Public ◽  
Industrial Design ◽  
Two Dimensions ◽  
Design Law ◽  
The Right ◽  
Exclusive Right

A designer has a copyright on the results of his creativity in the form of a blueprint and has the exclusive right to make the artwork into three or two dimensions. The industrial design law is directed at protecting mass-produced goods. People prefer protection with the right to industrial design, which is only protected for 10 years. This is because a design is very easy and can be imitated quickly by the general public. When it is protected by copyright, it becomes ineffective and wasteful. Copyright does not protect mass products.Keywords: Design, Industry, Work, Intellectual Property Rights

Electronic Surveillance, Privacy and Enforcement of Intellectual Property Rights

Cyber Crime ◽  
2013 ◽  
pp. 902-917
Author(s):  
Pedro Pina
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Point Of View ◽  
Security And Privacy ◽  
Electronic Surveillance ◽  
On Line ◽  
The One ◽  
The Right ◽  
Free Flow Of Information

In cyberworld, intellectual property rights and the right to informational self determination have become two realities in tension. Nevertheless, they are two main concerns of the e-commerce stakeholders. From the industry point of view, new digital technologies, left unregulated, may allow a free flow of information and unauthorized access to contents both from consumers or competitors; from the consumers’ perspective, security and privacy concerns are the major barriers to contracting on-line. The goal of the present chapter is to understand the relationship between anti-piracy oriented private electronic surveillance and consumers’ privacy. If, on the one hand, the enforcement of intellectual property is a laudable activity – since the recognition of economic exclusive rights is an incentive to artistic or scientific creation and the protection of the investments is an ICT industry’s legitimate interest –, on the other hand, the individual’s privacy sphere is one of the most important values and personal freedoms that law, including intellectual property law, must preserve.

Electronic Surveillance, Privacy and Enforcement of Intellectual Property Rights

2011 ◽  
pp. 301-316
Author(s):  
Pedro Pina
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Point Of View ◽  
Security And Privacy ◽  
Electronic Surveillance ◽  
On Line ◽  
The One ◽  
The Right ◽  
Free Flow Of Information

In cyberworld, intellectual property rights and the right to informational self determination have become two realities in tension. Nevertheless, they are two main concerns of the e-commerce stakeholders. From the industry point of view, new digital technologies, left unregulated, may allow a free flow of information and unauthorized access to contents both from consumers or competitors; from the consumers’ perspective, security and privacy concerns are the major barriers to contracting on-line. The goal of the present chapter is to understand the relationship between anti-piracy oriented private electronic surveillance and consumers’ privacy. If, on the one hand, the enforcement of intellectual property is a laudable activity – since the recognition of economic exclusive rights is an incentive to artistic or scientific creation and the protection of the investments is an ICT industry’s legitimate interest –, on the other hand, the individual’s privacy sphere is one of the most important values and personal freedoms that law, including intellectual property law, must preserve.

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