UKRAINE
LEGISLATIVE CHANGES IN 2011
Antonina Pakharenko-Anderson and Alexander Pakharenko Pakharenko & Partners
New procedure for customs control
The State Customs Service of Ukraine has approved a new procedure that concerns intellectual property (IP) and counterfeit goods. Order No. 1527 of December 23, 2010, which came into force on February 14, 2011, enables it to conduct checks that will help rights owners to protect their trademarks, industrial designs and appellations of origin during cargo transit. The procedure applies to cargo shipments that contain goods that are protected by IP. Cargo shipments, as well as hand luggage, on any mode of transport, must be moved by legal entities and individuals through Ukraine’s customs territory and the goods must be recorded in the customs register of IP rights.
All goods that are brought by ordinary citizens through Ukraine’s customs territory may be examined under this procedure. It can even be applied to seemingly innocent cases such as a person bringing a bottle of perfume into Ukraine as a gift. Customs officials have to compare a product’s data with its original characteristics as they are recorded in the register of IP rights. In the event of any suspicion that a product is counterfeit, customs must inform the relevant right holder’s representatives of the situation. This could be followed by litigation proceedings. Customs has also made changes to its procedure for recovering costs that are incurred during IP-related customs actions. Order No. 304 of April 12, 2011, which came into force on July 21, 2011, introduced the changes.
Notably, the amount that customs can pledge to pay in during an action has been reduced from approximately €5000 to approximately €1000. It was also determined that if an IP holder or its representative wishes, costs that are related to customs actions may be covered by its own working capital and not the sum that customs has pledged. If the IP owner or its representative decides on this course of action, the pledged sum is placed in an account with the treasury.
240 World Intellectual Property Review e-Digest 2012
Repayment of the pledge must be made in the currency in which it was deposited. Expenses that are incurred by customs and the owners of temporary storage warehouses in which goods are stored during the suspension of customs clearance will be deducted before repayment is made. If IP infringement is not proved, damages can also be recovered from the IP owner or its representative.
A new definition of a royalty
A new definition of a royalty was introduced in 2011. The Ukraine Ministry of Finance ordered the change in March and the Ukraine Tax Code was changed in July.
According to these changes, a royalty is any payment that is received as compensation for the use of, or for the grant of a right to use:
• Copyright and related right to literary works; • Works of art or science, including computer software;
• Recordings that are available on data carriers, video or audio cassettes, cinematographic films or tapes for radio or television broadcast; and
• Patents, trademarks, designs, secret drawings, models, formula, or rights to information on industrial, commercial or scientific experience.
Legislative developments for pharmaceuticals
Ukraine’s parliament, the Verkhovna Rada, has adopted legislation that is aimed at properly regulating trade in pharmaceuticals, strengthening the economic positions of pharmaceutical manufacturers that act in good faith and preventing the manufacture and sales of counterfeit pharmaceuticals. The law was adopted on September 8, 2011, and came into force on November 11.
www.worldipreview.com
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