Intellectual Property

Kateryna Oliinyk,
Senior Associate Arzinger Law Office

Firm style

The reality is that competitive position on the market is ensured by knowledge (information) and knowledge-based capital. Innovations provide competitiveness of goods and services on the market. Even now the competitive position on the market is predetermined by the implementation of more sophisticated innovation and technological products, use of information as of an important economic resource.

Innovationsmakeauniquecorporateidentityofthecompany; ensureitsrecognition and popularity among consumers.

Thereverseofthecoinis thatthe appearanceofa newcommodity or serviceand obtaining acompetitivepositionon the market may incur emergence of threats for business. Thus, competitorsmaycreatealookalikeproduct, borrowing your trade mark, corporate identity, all your innovations and ideas. Competition will exist forever. And competitors will seldom follow the principle of respectability. If you feel that they are damaging your business and you feel helpless before them, it means that something went wrong from the very start. That is, corresponding measures weren’t taken to get ready for protection. The proper way to protect your intellectual property is the correct registration of ownership by closure or execution of contract and other documents, provision of appropriate measures to protect your ideas in a commercial secret mode. If the company neglects these safety methods, dishonest competitors will not be slow to take advantage of this oversight.

Apart from dishonest competitors, many business problems are caused by patent trolls (squatters), who promptly register intellectual property. “Competition? It’s something we have never heard of.” Patent trolls have no plans to use your intellectual property. They register innovations, trademarks, the exterior of goods and then address the original developer with the aim of further selling or receiving compensation.

The patent trolling boom in Ukraine is due to imperfection of patent legislation. For example, patent issuing on industrial designs, utility models under the responsibility of the applicant, based only on the formally correct application. That’s how the happy owners of toothpicks, hangers and “apple” tablet patents appeared in Ukraine.

By obtaining a patent, trolls create obstacles to honest owners in business activities. For example, by creating barriers for the import of goods at the customs border, again abusing Ukrainian legislation, which allows the inclusion of intellectual property objects into the Customs Intellectual Property Registry.

Due to it, it is very important for every business to have its own protection strategy of intangible assets and to provide appropriate protection of its intellectual property. Taking into account the fact that each strategy is unique, the legal support structuring a protection strategy is indispensable. The success of intellectual property rights protection in the event of infringement or encroachment on the part of dishonest business owners will depend on how correctly they are formalized.

The significance of protecting trademarks on goods and services is supported by the fact that in Ukraine trademark disputes prevail in litigation, connected with the protection of rights on intellectual property objects.

At the same time, protection of innovation for the high-tech and innovation branches comes to the fore, while structuring the line of defense, by means of creating patent on an invention portfolio and by means of a commercial secret, as not all objects are covered by patent protection. The pharmaceutical industry may serve as the best example of how pharmaceutical manufacturers ensure for themselves leading positions on the market by means of patent protection. It should be noted that patent disputes in the pharmaceutical industry provided the basis for the formation of legal precedents on legal investigations connected with the infringement of patent rights to inventions in Ukraine, and revealed the imperfection of patent legislation in Ukraine granting the right to receive a protection patent on the utility model of the invention, which shouldn’t per se enable the use of legal protection in the context of proper business activities. Such abuse of the patent system is inadmissible at present according to the Ministry of Economic Development and Trade jointly with the State Intellectual Property Service of Ukraine; moreover, the stakeholders are involved in elaborating amendments to Ukrainian legislation with the aim of preventing such abuses of the patent system.

Such changes are part of a complex legislative revision in the field of intellectual property aimed at improving the system of legal protection of industrial property, creating effective mechanisms of administrative and legal procedure for objecting the rights on the objects of industrial property. It is expected that implementation of such changes will turn out for the best and will lead to an improvement in the business climate and investment attractiveness.