scholarly journals Procedural issues of applying to the court for the protection of intellectual property rights

2021 ◽  
pp. 46-55
Author(s):  
Andrii Shabalin
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Negative Impact ◽  
Scientific Article ◽  
Court Cases ◽  
Legal Cases ◽  
Procedural Law ◽  
European Court ◽  
Protecting Intellectual Property

Keywords: protection of intellectual property, court, EPC of Ukraine, CPC of Ukraine, European Court of Human Rights This scientific article explores the proceduralissues of going to court in case there is a violation of intellectual property rights. Inthe process of scientific research, the issues of jurisdiction in court cases on violationof intellectual property rights have been analyzed, the legal features of jurisdiction inlawsuits for violation of intellectual property rights have been determined, requirementsfor the content of a legal claim. Based on analysis of the economic procedurallegislation, it is concluded that a person who applies to the court for infringement ofintellectual property rights may refer to the cases of the European Court of HumanRights in order to substantiate his legal position. It is indicated that in the course ofthe 2016 judicial reforms in Ukraine, the rules of judicial jurisdiction and the competenceof the court in court cases on violation of intellectual property rights werechanged. At the level of procedural law, a special court was created — the High Courtof Intellectual Property, which is empowered to judicially review cases of IP violation.The High Court of Intellectual Property has not started its work for now. The authorpoints out that this situation has a negative impact on Ukrainian judicial practiceand the practice of protecting intellectual property rights. Based on the results of the study, the author proposed his own theoretical groundsand developed proposals for improving procedural legislation regarding the possibilityof introducing alternative jurisdiction in some categories of cases of violation of intellectualproperty rights. Such legal cases include copyright infringement of an individualwho is the author or the author's representative. The legal rule on alternativejurisdiction in cases of infringement of intellectual property rights is effective if thereis a violation of IP rights in the Ukrainian temporarily occupied territories. The authorpoints out that such a legislative proposal will improve the quality of legal protectionof subjects of intellectual property rights in the temporarily occupied Ukrainianterritories.

PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE: MODERN REALITIES AND PROSPECTS

2017 ◽  
Author(s):  
Yuliia Tovstohan ◽  
◽  
Serhii Ivanov ◽  
Keyword(s):  
Intellectual Property ◽  
Civil Rights ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Current System ◽  
General Procedure ◽  
Legal Protection ◽  
General Concept ◽  
Scientific Article ◽  
Definition Of

The scientific article examines the modern mechanism of protection of intellectual property rights in Ukraine. Attention is paid to the historically first using of the concept of intellectual property rights in international law and the shortcomings of this definition. The legal definition of this concept contained in the Civil Code of Ukraine is analyzed. It is concluded that the legislative enshrinement of intellectual property rights is evidence of its recognition by the state, and such a right applies to special objects, the list of which is enshrined at both national and international levels. The question of the relationship between the concepts of "protection" and "defense" of civil rights is covered. The main groups of approaches of scientists to the solution of this problem are indicated. An approach that defines "protection" as a general concept for "defense" is supported, where "protection" is a broader concept that covers the term "defense". Emphasis is placed on the fact that although these legal categories are related, they cannot be identified. The main features that distinguish these concepts are listed, and the features of "defense" as an independent concept are highlighted. There are given examples of definition of the concept of protection of intellectual property rights given by scientists. Based on these definitions, the main features of this term are summarized. The issue of forms of protection (jurisdictional and non-jurisdictional) has been studied. The general and special order within the jurisdictional form is distinguished. It is noted about the peculiarities of self-defense as a non-jurisdictional form. The focus is on the judicial (general) procedure for protection of intellectual property rights as the main one. Possible ways of protection (civil, administrative, criminal, and criminal) are analyzed. The problems and shortcomings of the current system of legal protection and protection of intellectual property rights in Ukraine are analyzed. Both reports from international partners and research by Ukrainian scientists were used. The authors outline ways to solve existing problems. The conclusions of the study are formulated and the possibility of further scientific research in this area is indicated.

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
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