Judicial Administration Structure for IP Disputes: Ukraine

According to Law No. 703-IX, the National Intellectual Property Authority is a state institution competent for all issues concerning the management and protection of intellectual property rights. Following the Resolution of the Cabinet of Ministers of Ukraine No. 943-P dated October 28, 2022, the functions of the National Intellectual Property Authority are performed by the state organization Ukrainian National Office of Intellectual Property and Innovations.

The Ukrainian National Office of Intellectual Property and Innovations performs the examination and registration of patents, utility models, trademarks, geographical indications, designs, and copyrights.

The Appeals Chamber is a collegial body of the Office to review objections raised against decisions of the Office on granting protection, applications for partial or full invalidation of intellectual property rights in whole or in part, applications for recognition of a trademark as well-known in Ukraine.

The decision of the Appeals Chamber adopted by the panel upon consideration of an opposition, appeal, or application for recognition of a trademark as well-known in Ukraine shall take effect from the date of its approval by an order of the Office.^[1]

The decision of the Appeals Chamber approved by the Office can be appealed to the civil or commercial court within two months from the date of its receipt.^[2]

Antimonopoly Committee of Ukraine (AMC) has jurisdiction over acts of unfair competition and is vested with a wide range of powers.^[3] AMC is competent to decide whether the act of unfair competition occurred. These decisions can be appealed to the commercial court.

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^[1] See Section VII of the Decree of the Ministry of Economic Development, Trade and Agriculture of Ukraine "On Approval of the Rules of Procedure of the Appeals Chamber of the National Intellectual Property Authority".

^[2] See Section VIII of the Decree of the Ministry of Economic Development, Trade and Agriculture of Ukraine "On Approval of the Rules of Procedure of the Appeals Chamber of the National Intellectual Property Authority".

^[3] See Article 7 of the Law of Ukraine "On the Antimonopoly Committee of Ukraine".

Currently, intellectual property disputes are being considered by various courts (local general jurisdiction and commercial courts), with most disputes falling under the jurisdiction of commercial courts.

Local General Jurisdiction Courts hear civil, criminal and administrative cases, as well as cases of administrative offenses following the procedures stipulated by procedural law.^[4]

In its civil jurisdictions, Local General Jurisdiction Courts reviews intellectual property disputes concerning legal relations involving a natural person as one of the parties to dispute. Intellectual property disputes involving only legal entities as the parties to dispute are adjudicated by Commercial Courts. There is no obligatory pretrial procedure in Ukraine. Thus, cease and desist letters or other pre-litigation measures are not required to initiate an IP-related court action. The preliminary injunctions are available based on the claims raised before or alongside the proceedings.

Decisions rendered by the Local General Jurisdiction Courts for civil cases can be appealed to the General Jurisdiction Appeal Courts and subsequently to the Supreme Court (Civil Cassation Court). Similarly, decisions of the commercial courts can be appealed to Commercial Appeal Courts and subsequently to the Supreme Court (Commercial Cassation Court). Following the judicial reform of 2016 and adoption of the Law on "On the Judiciary and the Status of Judges", within the Commercial Cassation Court of the Supreme Court, a specialized court chamber exclusively reviewing cases related to protection of IP rights, antimonopoly, and competition law^[5] has been created and successfully operating since December 2017.

In its criminal jurisdiction, Local General Jurisdiction Courts are authorized to adjudicate IP-related criminal offenses following Article 176 on violation of copyrights and related rights, Article 177 on violation of patents, utility models, industrial designs, integrated circuit topographies, plant varieties, and rationalization proposals, Article 229 on illegal use of trade and service mark, trade name, indication of origins. An intellectual property infringement qualifies as a criminal offense if the infringement is intentional and causes material damage in a significant, large, or particularly large amount. Material damage is categorized as significant if the amount exceeds twenty times or more of the tax-free minimum income, as large if it surpasses two hundred times or more, and as particularly large if it exceeds one thousand times or more. To initiate a criminal proceeding, either a right holder or police/prosecutor must file a complaint.

Decisions of the Local General Jurisdiction Courts for criminal cases can be appealed to the General Jurisdiction Appeal Courts and subsequently to the Supreme Court (Criminal Cassation Court).

If an intellectual property infringement does not qualify as a criminal offense, it can still be considered an administrative offense according to Article 51-2 of the Code of Administrative Offences. These IP infringements are considered by the Local General Jurisdiction Courts of first instance and decisions can be appealed to the General Jurisdiction Appeal Courts. There is no cassation appeal available for administrative offences.^[6]

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^[4] See Article 22 of the Law of Ukraine "On the Judiciary and the Status of Judges".

^[5] See Paragraph 2, Part 6, Article 37 of the Law of Ukraine "On the Judiciary and the Status of Judges".

^[6] See Article 294 of the Code of Ukraine on Administrative Offenses.

The new Law "On the Judiciary and the Status of Judges" envisages establishing a new specialized IP Court – the High Court on Intellectual Property (HCIP). HCIP will integrate the functions of both a court of first and appellate instance,^[7] handling disputes related to intellectual property rights (previously adjudicated by the general jurisdiction courts, commercial courts, and their respective appellate instance courts). The number of judges will be 21 at the first instance and nine at the HCIP Appellate Chamber (second instance).

Article 20.2 of the Economic Procedure Code^[8] of Ukraine stipulates the jurisdiction of the HCIP to hear cases related to intellectual property disputes. This article provides a non-exhaustive list of disputes that the HCIP will be competent to hear:

• disputes concerning the rights to an invention, utility model, industrial design, trademark, trade name, and other intellectual property rights, including the right of prior use;
• disputes regarding registration, maintenance of intellectual property rights, invalidation, extension of IP, early termination of patents, certificates, other acts certifying or on the bases of which such rights arise, or which violate such rights or related legal interests;
• cases on the recognition of a trademark as well known;
• disputes concerning the rights of an author and related rights, including disputes concerning collective management of the author's property rights and related rights;
• disputes concerning conclusion, modification, termination, and execution of an agreement for exercising IP rights and commercial concessions;
• disputes concerning protection against unfair competition, such as unlawful use of signs or goods of another manufacturer, copying of the appearance of the product; collection, disclosure, and use of trade secrets; and appeals against decisions of the Antimonopoly Committee of Ukraine on issues specified in this section.

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^[7] See Article 31 of the Law of Ukraine "On the Judiciary and the Status of Judges".

^[8] On October 3, 2017, the Parliament of Ukraine adopted amendments to the Economic Procedure Code of Ukraine.

The Supreme Court is characterized by the following statistical indicators:

	2020	2021	2022	First half of 2023
Commercial Cassation Court	121	226	98	76
Civil Cassation Court	89	72	52	42

https://reyestr.court.gov.ua/

WIPO Lex – Ukraine