Intellectual Property Forum 2014

Pakharenko & Partners received a high accolade from the organizers of the Intellectual Property Forum (IPF 2014) being recognized “IP Law Firm of the Year”. The firm was the general partner of the event and took an active part in the work of the Forum. Antonina Pakharenko-Anderson, Managing Partners of the firm/Coordinator of BASCAP initiative in Ukraine / Vice-President of ICC Ukraine on intellectual property issues / President of the Ukraine Alliance Against Counterfeiting and Piracy (UAACP) was the moderator of the session dedicated to the European future of the national IP market; John Anderson, partner of the firm/Chairman of the Global Anti-Counterfeiting Group, made presentation on inter-agency collaboration in the field of IPR protection on the international level; Oksana Kondratieva, Head of Competition and Advertising Law Department, was the moderator of the section dedicated to the administrative procedure for IP rights enforcement; Yevhen Kompanets, lawyer of the Pakharenko & Partners, provided the overview of the issues related to destruction of counterfeits in Ukraine. Furthermore, the IPF 2014 was attended by many other specialists of Pakharenko & Partners who came to support their colleagues and take part in the work of the Forum.

Intellectual Property Forum (IPF 2014) was held on 26 of June 2014 at the premise of the Premier Palace Hotel in Kiev and gathered the record number of participants, namely 200 attendees including representatives of Ukraine’s government bodies, large enterprises, law firms, international and national NGOs, business associations, as well as patent attorneys and scholars. Creation of such a communication forum was the main purpose of the organizers of the event, Yuridicheskaya Praktika Magazine and the State Intellectual Property Service of Ukraine.

The format of the event provided for three general sessions, three parallel sections (to allow the participants to choose the most interesting topic), and envisaged the presentations of 40 speakers.

During the first session of the IPF 2014 titled “Development of Intellectual Property and Investment Attractiveness of Ukraine” the Chairman of the Supreme Economic Court of Ukraine, Bogdan Lvov, made a presentation in which he reminded the participants that in commercial courts of Ukraine court specialization for consideration of IP-related cases has been established since 2003. He said that this specialization was recently abandoned, however, after coming into effect of the Law of Ukraine “On Restoration of the Confidence in Judicial Power in Ukraine” this gap was eliminated, and starting from May 2014 already specialization without the excessive detail was established by the assembly of judges that makes it impossible, even theoretically, to forward the case to a specific judge. For the time being only 7 categories of cases for allocation remained at the Supreme Economic Court of Ukraine, where one category is related to protection of IPR objects and also includes the issues of unfair competition. During his presentation Mr. Lvov answered the questions of the participants of the Forum, in particular with regard to the advisability of establishment of a patent court in Ukraine, creation of which, in the opinion of the Chairman of the Supreme Economic Court of Ukraine, will be accompanied by the number of difficulties, particularly related to funding. Also, the new court instance will not guarantee solving the issue of sufficient special competence of judges that would consider the cases related to intellectual property issues.

Opening the second session, Antonina Pakharenko-Anderson, session’s moderator, pointed out that Ukraine is now in the process of establishment of the democratic society, and the associate membership in the European Union will provide an additional attractiveness for investments in the Ukrainian economy; however, securing competitiveness of our economy and its further innovation development are impossible without protecting and defending intellectual property.

Antonina Pakharenko-Anderson emphasized that in order to determine the basic principles and strategic goals of the further development of the field of IP in Ukraine the State IP Service of Ukraine has developed Draft National Strategy of the Development of the field of Intellectual property for the period until 2018 which was described in more detail by Mykola Kovinya, the Head of the State IP Service of Ukraine. Mr. Kovinya presented the Draft Strategy to the audience outlining the main areas, stages and mechanisms of implementation of the state policy aiming at the use of intellectual property as a strategic resource in the system of shaping national wealth and advancing our country’s economic competitiveness and its integration into the international economic environment.

Introducing the next speaker, Mrs. Pakharenko-Anderson noted that the system of protection of IP rights has significant impact on the economic growth, FDI, employment, innovation and general competitiveness in each country. Accordingly, strengthening the IP protection and enforcement regime is a key element for the country to realize its economic potential. With this in mind the International Chamber of Commerce together with its business initiative ‘Business Action to Stop Counterfeiting and Piracy’ (BASCAP) carried out the study of the Ukraine’s IP market and prepared the report titled “Promoting and Protecting Intellectual Property in Ukraine” targeted specially for the Ukrainian Government, and officially presented to the Government on June 25, 2014 at the Ukrainian National News Agency “Ukrinform”. During the IPF 2014 Jeffrey Hardy, Director of BASCAP, presented the report before the professional community.

In his speech Mr. Hardy noted that ICC/BASCAP and ICC Ukraine are hoping that the recommendations provided in the report will be useful for the Ukrainian authorities in implementation of political and legislative reforms necessary for strengthening the IP regime, and will also be a useful input to the discussions in completing the work on the National Strategy of the Development of IP in Ukraine for the period until 2018. The availability of the comprehensive national strategy of protection of IPRs containing the significant number of political and legislative reforms like those provided in the ICC/BASCAP report will demonstrate Ukraine’s strong intention to support the initiatives promoting growth and technology development which may be ensured subject to securing a robust IP regime.

The issues of inter-agency collaboration in the field of anti-counterfeiting were highlighted by John Anderson who started his presentation with the overview of major international NGOs working in the field of IPR protection, their status and objectives. Mr. Anderson described the role and activities of the Global Anti-Counterfeiting Group that unites a number of national and regional associations and presents the good example of public-private partnership. He also outlined the functions and activities of international government organizations, such as Interpol, working in the field of IPR enforcement, and provided the examples of successful cooperation between non-government and international intergovernmental organizations.

The further part of Mr. Anderson’s presentation related to description and critique of some existing challenges of ‘Public/private’ partnership in the field of anti-counterfeiting. According to Mr. Anderson, the main challenge stems from the fact that counterfeiting is an economic and social problem, it is international and pan-industry phenomenon with diverse action, linked to organized criminal business and it is flexible and adaptable.

Speaking about the existing enforcement challenges in the field of anti-counterfeiting, Mr. Anderson noted that the problems with enforcement are related with the several factors, namely government inertia (responsibility is shared by the consumers as voters), insufficient allocation of enforcement agency resources, inadequate priorities, government effort disparity and judicial ‘indifference’. In view of the aforesaid, in the opinion of Mr. Anderson, public/private partnerships, inter-agency cooperation structures need to work on operations, strategies and awareness messages.

In terms of operations, the activity of such organizations should include the following areas, namely  detection,  investigation, prosecution, intelligence, product security technology and services, storage, transport. Strategy area is expected to include lobbying, legislation, legal/judicial procedure, resources, research and statistics, awareness (communications). At the same time, communications and awareness activities should target the respective audiences, such as influencers – academics, professionals (media); civil society – consumers, anti-globalists, youth; business – CEOs, management, employees, competitors; services – logistics suppliers; enforcement agencies; government – executive, legislature, civil service; and others (intermediaries) – retailers, distributors, ISPs.

Inna Shatova, the Deputy Head of the Department/ Head of the Industrial Property Department of the State IP Service of Ukraine highlighted the issues of legal protection of geographic indications covering, in particular, this aspect of Ukraine-EU Association Agreement.

This session was concluded with a presentation of Larysa Vrublevska, associated partner of the International Legal Center “EUCON”, who spoke about the aspects of commercialization of the IP objects.

Multidimensional topic of IPR enforcement was discussed within three parallel sections during the Forum, namely the sections of enforcement of the IP rights in the IT field,  administrative procedure of IP rights enforcement, national and international protection of industrial property.

The section dedicated to administrative procedure of IP rights enforcement was moderated by Oksana Kondratieva, and its participants included the experienced representatives of the public bodies and legal business. The list of topics for discussion included the burning issues relating to administrative enforcement of IP rights. In particular, the participants discussed the issues of peculiarities and problems of enforcement of IP rights before the Antimonopoly Committee of Ukraine and the State Inspection of Protection of Consumer Rights, and also covered the available court practice pertaining to these issues.

This discussion was attended by many participants of the Forum, many burning issues were raised to which the speakers attempted to provide the exhaustive answers. The participants of this section also shared their experience of administrative enforcement of IP rights, their know-how in solving the problematic issues. In particular, Antonina Pakharenko-Anderson spoke about the peculiarities of launching goods onto the market and protecting right holders from the unfair competitors by means of administrative procedures. Summing up the session, the participants reached a conclusion about the need for further improvement of the Ukrainian legislation and its adaptation to the European standards.

Among all the other topics a particular attention was paid to the session dedicated to litigation in the field of IP. The presence of numerous representatives of judicial authorities allowed the participants of the Forum to familiarize with the present peculiarities of consideration of IP-related cases before the court and to ask judges the additional questions. During this session the lawyer of Pakharenko & Partners, Yevhen Kompanets, made a presentation highlighting the problematic issues of the process of destruction of counterfeit goods in Ukraine as the last stage of anti-counterfeiting procedure. The speaker focused on the problems pertaining to the destruction of counterfeits that allow counterfeits to enter the territory of Ukraine. These problems, in particular, include the difficulty, and sometimes the impossibility to control the destruction process on the part of the right holder, the absence of right holder’s right to participate in the process of destruction of counterfeit goods, where such right holder’s rights have been infringed, due to the fact that the right holder is not a party to the enforcement proceedings related to destruction of counterfeits in criminal, customs and administrative cases; small number of enterprises dealing with destruction of counterfeits; the possibility of bringing the seized counterfeit products onto the market if the customs protocols are drawn up based on Acticles 472, 482, 483 of the Customs Code of Ukraine. In the final part of his presentation Mr. Kompanets announced the legislative recommendations developed by the company which, if adopted, would prevent the counterfeits from repeated entering the market.

At the end of the event there was the ceremony of awarding the leading IP practitioners.

The Forum was best remembered for the extraordinary activeness of the participants, the intense agenda, and it was carried out in a friendly working atmosphere, helped to refresh the old issues and reveal the new perspectives in the development of the IP field and thus was interesting both for the experienced professionals and the beginners.

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