Protection of Intellectual Property Rights

Ukraine has already established a comprehensive legislative system for the protection of the intellectual property rights. Since 1993 Ukraine has enacted legislation relating to patents on inventions, models, industrial designs, plant varieties, seeds, cattle breeding, trademarks, copyrights and laws on the protection of information in automated systems. Special amendments have been made to the Criminal and Administrative Codes of Ukraine to provide criminal and administrative sanctions for disclosure of trade secrets and unfair competition.

Ukraine is a member of the Paris and Madrid Unions, and a party to the Patent Co-operation Treaty and Universal Copyright Convention. In addition, on May 31, 1995, the Parliament passed a law whereby it acceded to the Berne Convention for the Protection of Literary and Artistic Works (the Paris Text of July 24, 1991, as amended). The accession by Ukraine to the Berne Convention represents further positive developments in the area of the protection of intellectual property rights. Application of the Berne Convention is limited to literary and artistic works which have not yet become a part of the public domain in Ukraine. According to the “Law of Ukraine on International Treaties” of Ukraine all international agreements to which Ukraine is a party constitute integral parts of its domestic legislation. Accordingly, the provisions of the foregoing conventions form part of Ukraine's legislative regime on intellectual property.

The weak point in Ukrainian intellectual property law is the issue of remedies and their enforceability. As a matter of practice, ordinarily only civil remedies (injunctive relief, compensation for damages including punitive damages, specific performance, etc.) may be sought by the injured party in courts. Ukrainian legislation does not provide for any criminal sanctions, except for violations of trade secrets. Administrative liability in the form of fines, confiscation of products, equipment and raw materials may be sought in the event that an infringement of intellectual property rights is accompanies by unfair competition on the part of the infringer.

The notion of unfair competition under Ukrainian legislation is formulated very broadly to include, any unlawful use of patents, trademarks, brand names or markings, unlawful copying of the product's form, packaging, trade dress, imitations, direct counterfeiting, violation of trade secrets and confidential information, public defamation, etc. On the other hand, the amounts of administrative fines provided for in the Code of Administrative Offences are symbolic at best when compared to the profits which could be generated by infringers.