Bravo to supremacy!
"Implementation of judicial reform and establishment of the Supreme Intellectual Property Court will catalyze positive irreversible processes in our state leading to the triumph of the supremacy of law"
ALEXANDER PAKHARENKO, PARTNER AT PAKHARENKO & PARTNERS IP AND LAW FIRM, BELIEVES
— Is the establishment of the Supreme Intellectual Property Court (SIPC) a "step forward" for Ukrainian justice?
— It certainly is for the entire professional community, we have high hopes for this court!
The country needs judicial reform like breath for its nostrils. Ukrainian citizens are tired of saying that there is no justice in Ukrainian courts, and that corruption is the central problem in Ukraine. Therefore, the main expectation from the reform is to no longer hear in our society the phrase: "I have administrative levers, how can I help you?" With the existing set of values, the assets of our Government officials and judges can be easily grabbed in our country today, as nobody respects property rights. As a result, investors steer clear of our country. In order to manage this situation, our state needs to have identical rules for all businesses, and the rule of law must prevail in Ukrainian courts! Therefore, the reform of the entire judicial system is so important, and it must be completed with the creation of honest and independent courts.
As for the SIPC, the professional community has been discussing the need to introduce specialization of courts with the subsequent creation of the Intellectual Property Court or the Patent Court for ten years. The corresponding presidential decree is the first long-awaited step in the transition to a qualitatively different, higher level of administration of justice in the protection of IP rights. In addition, reliable IP rights protection is a guarantee of creating a favorable investment climate, which will give rise to a general revival of the country's economy.
— What is your ideal model of how the SIPC should work?
— Ideally, the SIPC should consider all matters relating to intellectual property, with the exception of criminal and administrative offenses. The judges will be highly-qualified specialists who already have the appropriate IP education and who have the required experience, because qualified consideration of IP disputes is impossible if the SIPC’s judges do not have these two components!
Attorneys must be true seasoned professionals. Technical experts of different specializations and practicing patent attorneys will be involved in court proceedings on a permanent basis. The latter will be able to act as representatives of the parties or legal advisors. Participation in a trial of specialized professionals as experts will enable the court to understand the technicality of a case, to avoid unjustified commission of the opinion of a forensic expert, which will significantly cut the cost of IP disputes and speed up their consideration.
As a result of implementation of this ideal model of how the SIPC should work, we will be able to have unified court practice excluding different approaches of judges to application of the same legal standards, which will be an additional guarantee of high-quality justice in the field of intellectual property.
— You pay a great deal of attention to counterfeiting in your professional activities. What key legislative changes are needed to protect IP items from misuse?
— Today, the first and most effective barrier against the smuggling of counterfeit products into the country is the Customs Service, so I'll start with the changes that are necessary in this sphere. The provisions of the Customs Code of Ukraine (Articles 497, 498) regarding administrative offenses do not provide for participation in cases on violation of customs rules (including in court) of persons whose IP rights can be, or were, violated. Thus, the state grants the right to protect IP rights, but there is no practical mechanism for its implementation. Therefore, the primary task is to ensure the participation of the rights holder in cases of violation of customs rules related to the violation of its IP rights. This will enable the rights holder to defend its rights in courts effectively and avoid judgments on the return of counterfeit products to the importer, especially if one considers the "ingenuity" of violators who grab any opportunity to avoid responsibility.
Let's consider, for example, giving a court reviews of the court's expert report, on the basis of which violators are now able to escape punishment. According to lawyers, the review should not be considered as written proof at all, since it does not contain facts, it is only the means of assessing the expert's opinion by the interested party. The review has a strictly customized nature, which sets out the agreement between the party and the reviewer on its content. What objectivity, reasonableness and impartiality of the opinions of reviewers can one talk of in such cases?
The second task is to ensure the mandatory and unavoidable destruction of counterfeit products confiscated by the state, in order to prevent customers from buying products of unknown origin and quality.
The third important aspect is to ensure the rights holder’s control over the destruction of counterfeit products.
Finally, I would like to see how the State Fiscal Service maintains its supervision over the sale of imported goods in Ukraine through the introduction of post-customs control of import operations, of which so much has been said.
— Does criminal legislation have urgent tasks?
— It certainly has. Think, for example, of the need to supplement the sanctions contained in Article 229 of the Criminal Code of Ukraine with the punishments of correctional labor and deprivation of freedom, which have been discussed since the introduction of humanization of responsibility for violation of trademark rights in November 2011. World experience shows that only loss of freedom can become a constraining factor for violators.
It is also necessary to increase the size of fines for violating IP rights, as provided for in Article 512 of the Code of Administrative Offenses of Ukraine. At the present time, it ranges from 170 to 3,400 hryvnias, which is incomparable with the threat that counterfeit products carry to the country's economy and for us, its citizens.
It would also help to prevent counterfeiting and piracy if the boundaries of occurrence of the criminal liability according to Articles 176, 177, 229 of the Criminal Code of Ukraine, which now amounts to 16,000 hryvnias, were narrowed. In addition, it is becoming increasingly difficult to amass evidence on the distributors of counterfeit goods.
— Do you think that to overcome counterfeiting we must step up sanctions for the production and distribution of such products?
— Unfortunately, there is no alternative. This is not only my opinion. The entire professional community has been talking about the need to toughen responsibility for this type of crime over the past few years. It is the lack of adequate punishment that allows organized criminal groups to get revenue, which is comparable to traffic in drugs and arms in profitability through such illegal activities. As a result, the level of impunity is growing, criminalization and corruption in society are increasing, which consequently supports unfair competition, entails a fall in investment, and will ultimately reduce the standard of living in our country.
— Finally, what is your forecast of the success of judicial reform and the fight against counterfeiting in our country?
— I am a born optimist, and I believe that implementation of judicial reform and establishment of the Supreme Intellectual Property Court will catalyze irreversible positive processes in our country, leading to the triumph of the supremacy of law. Any transgressor of the law will receive unavoidable punishment, and we will have fair justice. So, let's get to work!