The protection of intellectual property rights in Ukraine has become increasingly acute in recent years, as the scale of violations of these rights is increasing rapidly. At least one should mention the problem of the production and sale of unlicensed CDs, video cassettes, computer programs, etc., as well as the related complications of international trade relations in this and related fields. Therefore, a number of norms of the Civil Code and special legislation are devoted to the consequences of violations of intellectual property rights and their protection.
Violation of intellectual property rights is possible:
- in the form of actions (encroachment on the right of intellectual property);
-in the form of inaction (non-recognition of intellectual property rights by bodies that, in cases established by law, should legitimize the results of intellectual, creative activity);
- in a mixed form (non-recognition of the right of intellectual property with the subsequent unlawful use by the same subject of the results of someone else's intellectual, creative activity).
Violation of intellectual property rights also recognizes the importation into Ukraine's customs territory of goods (goods) that use objects of intellectual property rights protected on the territory of Ukraine without the permission of the subject of intellectual property rights in violation of this right, regardless of whether these objects are protected or protected in the countries of origin or not.
However, even if there are signs of violation of the right of intellectual property, actions that are recognized by law by law are not recognized violations of intellectual property rights.
A violator of intellectual property rights may be a natural or legal person. The fault of the offender for qualifying actions or inactions as being in violation of intellectual property rights does not matter.
The material consequence of violation of intellectual property rights is the appearance of counterfeit goods, that is, products (goods) produced using the object of intellectual property right and implemented within Ukraine with violation of the right to it. Counterfeit are also products that are legally manufactured, but are distributed with violation of the rights of the subject of intellectual property.
The general principles of protection of intellectual property rights against violations are established in accordance with art. 418 of the Civil Code, which emphasizes that such right is inviolable. It belongs to its owner as a natural right, as a result of which no one may be deprived of intellectual property rights or limited in its implementation, except in cases stipulated by law.
In accordance with these principles, which, in turn, are based on the provisions of the Constitution, the protection of intellectual property rights is carried out by a court. In particular, Art. 432 The Civil Code establishes that each person has the right to apply to the court for the protection of his right of intellectual property in accordance with Art. 16 Civil Code Consequently, for a subject of intellectual property right there is an opportunity to demand that the court apply such general methods for protecting all civil relations:
1) recognition of the right (this may be the recognition of the right of intellectual property, recognition of the right to use the relevant object, etc.);
2) recognition of the transaction invalid (for example, invalidation of the license agreement);
3) termination of actions that violate the right (termination of the use of a work without the consent of its author);
4) restoration of the situation that existed before the violation of law (for example, the seizure and destruction of the illegally published text of a literary work);
5) compulsory execution of a duty in kind (for example, a requirement for a publisher to fulfill his obligation under a contract for the publication of a work);
6) change of the legal relationship (changing the terms of the author's agreement at the request of the author in the form of a reaction to a violation by the publisher);
7) termination of the legal relationship (early termination of the license agreement in case of violation thereof);
8) indemnification and other methods of compensation of property damage;
9) compensation for moral (non-property) damage;
10) recognition of illegal decisions, actions or inactivity of the state body, the authority of the Autonomous Republic of Crimea or a local self-government body, their officials and officers.
The court may also protect civil and intellectual property rights by applying special means of protecting intellectual property rights and by deciding on:
1) the application of immediate measures to prevent the violation of intellectual property rights and the preservation of relevant evidence;
2) stopping the passage through the customs border of Ukraine of goods the import or export of which is carried out in violation of intellectual property rights;
3) removal from the civil circulation of goods manufactured or imported into civil circulation in violation of intellectual property rights (counterfeit goods);
4) removal from civil circulation of materials and tools used mainly for the manufacture of goods in violation of intellectual property rights;
5) application of one-time money collection instead of indemnification for the unlawful use of the object of intellectual property rights. The amount of the penalty is determined in accordance with the law, taking into account the fault of the person and other circumstances of significant significance;
6) publication in the mass media of information about the violation of intellectual property rights and the content of the court decision on such violation.
In order to prevent the violation of the intellectual property right and to preserve relevant evidence, the court has the right to prohibit the defendant or another person from committing certain acts. For this, the following conditions are required: 1) there are sufficient grounds to believe that this person is a violator of intellectual property rights; 2) the said actions relate to the production, reproduction, distribution, use, and transportation, storage or possession of products (goods) for which there are sufficient grounds for considering them to be counterfeit; 3) the said actions are committed in order to release these counterfeit goods (goods) into the civil circulation. By its nature, this is a prohibition action, the possibility of submission of which is provided in Part 2 of Art. 386 of the Civil Code. In cases where the violation of intellectual property rights concerns the proprietary rights of its subject to a particular material substrate (for example, a manuscript, a film with audio or video recordings, a computer program carrier, etc.), the means of protecting the rights may be used to protect them property, established by Chapter 29 of the Civil Code.
If actions of the infringer of intellectual property rights have signs of an offense for which criminal liability is provided, the inquiry, investigating authority or court is obliged to take measures to secure the submitted or possible future civil action by seeking and arresting: 1) articles (goods), which is supposed to be counterfeit; 2) materials and equipment intended for the manufacture and use of the said articles (goods); 3) documents, accounts and other items that can be evidence of actions for which criminal liability is provided in accordance with the current legislation.