News (#01-02 January-February 2019)


Draft Law On Self-Regulatory Organizations

The Ministry of Economic Development has submitted the Draft Law On Self-Regulatory Organizations for discussion.

The declared objective of this draft  is the introduction of a proper regulatory framework for the development of self-regulation of economic and professional activities in Ukraine by enabling self-regulation conduct related to such activities by entities of economic or professional activity. This would be done by establishing self-regulatory organizations, as well as through development of legislative grounds for delegating certain functions of state authorities and local self-government bodies to such organizations arising from the regulation of economic and professional activities or by assigning such functions to them.

In Ukraine, just 24 self-regulatory organizations conducting activities in 6 areas are recognized, namely, 8 self-regulatory organizations in valuation activities, including land appraisal, 2 — land development, 5 — conducting activities of court-appointed administrators, 4 — architectural activities, 5 — professional activities in the securities market.

At the same time, in certain areas of economic and professional activities there are organizations that, due to functions performed and other inherent features, can be classified as self-regulatory ones. At the same time, the legislation does not allow for self-regulation in certain areas, particularly security, advertising activities, as well as activities in the areas of medicine and education.

It is envisaged that self-regulatory organizations will be established and operate on the basis of voluntary or mandatory membership. At the same time, according to the general rule, self-regulatory organizations are established on the basis of voluntary membership.

The draft establishes principles of establishment and activities of self-regulatory organizations, their goals and tasks, requirements for constituent documents (articles and regulations), rights and obligations of their members, system of management bodies, the basic principles of the activities of self-regulatory organizations, including their relations with the state, procedure for exercising control over implementation and compliance with regulations of a self-regulatory organization by its members. The draft also tackles the issue of conflict of interests.


Holographic label on discs to be canceled

The Government has developed the Draft Law On the Distribution of Copies of Audiovisual Works, Phonograms, Videograms, Computer Programs, Databases (the Law On Distribution of Copies) and introduction of amendments to certain legislative acts of Ukraine.

The objective of the draft’s adoption is to cancel the labeling system for copies of audiovisual works, phonograms, videograms, computer software, databases by control stamps as this system has proved to be ineffective. Another objective set is to correct clerical errors and to refine certain provisions of the Law On Effective Management of Intellectual Property Rights of Copyright Holders in the Field of Copyright and (or) Related Rights.

According to the draft explanatory note, the protective element “control stamp”, despite its sufficiently high level of protection, is imperfect and, therefore, violators manage to change original designations and label their counterfeit products with such holographic elements. Due to the development of information and communication technologies and use of Internet services as the source for distribution of items of copyright and related rights, the actual use of disks for laser read systems as media for distributing copies of audio-visual works, phonograms, videograms, computer software, databases has lost its relevance significantly.

The exclusion of Article 164-9 (illegal distribution of copies of audio-visual works, phonograms, videograms, computer software, databases) from the Code of Ukraine on Administrative Offenses, Article 216 of the Criminal Code of Ukraine (illegal production, forgery, use or sale of illegally manufactured, obtained or counterfeit control stamps) is also proposed.

Harmonization of laws relating to Intellectual Property with EU right

The Cabinet of Ministers has registered Draft Law No.9385, whose designated aim is harmonization of legislative provisions of Ukraine relating to the protection of rights to inventions, utility models, industrial designs and trademarks with the EU right and implementation of the respective provisions of the Association Agreement signed between the EU and Ukraine.

The protection of utility models stipulated by the Draft suggests the possibility to quickly obtain a patent for a utility model; the possibility to quickly terminate the activity of dishonest holders (so-called patent trolls), as well as the possibility of nullifying the rights to a utility model through application to the Appeals Chamber of the Ministry of Economic Development and Trade.

Thus, with regard to inventions and utility models, the list of objects and technologies which are not protected by law was expanded. This will contribute to the possibility of abusive practice during registration of inventions and utility models which, in fact, are not abusive. Besides, this Draft Law stipulates the possibility of submitting applications for a patent registration in electronic form and providing the possibility for any person to appeal against a patent registration within 6 months of its date of registration (post-grant opposition).

The Draft creates an additional criterion of protectability of industrial designs, especially their individual features (regarding exterior appearance, form and structure of lines, color combination, material texture of a certain item or its part), stipulates the legal protection of non-registered industrial designs, submitting applications for a registration in electronic form, and a term of right of no more than 25 years (currently, 15 years). The Draft also changes the type of title of protection, from a patent to a certificate, and stipulates the possibility of pre-judicial cancellation of the certificate in the Appeals Chamber in order to deal with patent trolling.


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