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Protection of intellectual property rights at the customs

The practice shows, it is not important only to get the legal protection of own object of the intellectual property, but also to take care of the reliable protection of own rights.

One of the methods of protecting one’s rights is the procedure of registering the objects of the intellectual property in the register, performed by the State customs service of Ukraine to perform the customs control over the movement of the present products through the customs terminals of Ukraine.

It should be noted that for September 28, 2010, the List of objects of the right of the intellectual property, included to the customs register, contained 228 objects, predominantly trade marks.

For putting the object of the intellectual property to the customs register of Ukraine, one should prepare and submit to the customs bodies a set of documents, provided by the Ukrainian legislation and pay the hypothecary sum, which amounts 5000 EUR

According to article 256 of the current Customs Code of Ukraine, the person, who:

  • in accordance with the Ukrainian legislation is the holder of property rights to the object of the right of the intellectual property;
  • and who has the basis to think that in the process of moving the products through the customs border of Ukraine one violates or can violate his rights to the object of the right to the intellectual property;

has the right to submit to the bodies of the State customs service of Ukraine (hereinafter referred to as State customs) an application, asking for promotion in protecting his property rights to the object of the intellectual property by means of putting the corresponding data to the customs register of objects of the rights of the intellectual property (hereinafter referred to as Register).

The Register includes objects:

  • of the copyright and allied rights;
  • trade marks;
  • production pieces;
  • geographical marks.

The information about the objects of the intellectual property, registered in the Register, is sent to all customs bodies of Ukraine and in case of founding the rights violation, their customs formalizing is stopped. The infringing goods are subject to placing in the store houses of the temporary keeping or in the store houses of the State customs.

Article 257-1 of the Customs Code (adopted in 2006) about the right of customs bodies to stop the customs formalizing of the product by the own initiative can be considered as a rather new one. If the customs border of Ukraine is crossed by the product, to which one has not submitted the application about the protection of the right of the intellectual property, but if there is enough reasons to think that someone can violate the right to the object of the intellectual property during its movement.

Documents, which are submitted to the State customs
In accordance with item 5 of the Resolution of the Cabinet of Minister of Ukraine “Matters of the registration of the objects of the right of the intellectual property in the customs register, obtaining information and interactions of customs bodies with other law enforcement and controlling agencies and holders of the rights to goods by the initiative of the customs body”, dated April 13, 2007, Nu. 622 (hereinafter referred to as Resolution), the right holder or his representative submits the following documents to the State customs for including the object of the intellectual property to the customs register:

  1. application about the promotion in protecting property rights to the object in accordance with the established formed, adopted by the Resolution. In the application about the promotion in protecting property rights to the object of the right to the intellectual property, one specifies the data about the legal entity or natural person – applicant, authorized representative of the person, country of deliveries, method of the transportation, etc.;
  2. extract from the State register about the registration of the intellectual property right in Ukraine (for trade marks which have the international registration, - extract from the International register of the intellectual property International bureau, which one supplements with the translation into Ukraine and information about the Ministry for education and science about the practice of the international registration in Ukraine. For such objects as objects of the copyright and allied rights – information about documents, which certify the availability of the above-mentioned rights);
  3. detailed description of the object and goods, which contain the object. Such a description gives an opportunity to the customs body to identify objects and products and determine the code of products, according to the Ukrainian classification of products of the foreign economic activity;
  4. samples of goods, containing the object or their pictures;
  5. notarized copy of the licensing agreement about the object use (in case of filling the application by the person, who has obtained the right to use the object and authorities on behalf of right holder to prevent the illegal use of the object, including to prohibit such a use in accordance with the legislation).

For protecting rights to production pieces, the right holder should supplement the application with the extract from the State register of the patents of Ukraine to production pieces.

Terms of the registration
After the coming of the application and supplemented materials, the State customs informs the right holder or his representative about the results of its consideration during 30 calendar days in the written form. The notification contains the information about the possibility of including the object or refusal to include it to the customs register and basis for such a refusal.

The right holder or his representative, having received the notification about the possibility of including the object to the customs register, should put the pledge in the order, determined by the State customs, or give any other equivalent guarantee.

The volume of the guarantee sum is the fixed value. It is equivalent to 5000 EUR.

After putting the pledge by the right holder or his representatives or submitting any other equivalent guarantee, the State customs in the 10-day term registers the object and issues to the right holder or his representative the reference in the form, established by the State customs, about putting the object to the customs register. This reference contains the date of the registration, number in the customs register and term, for which the registration has been performed.

Including the object to the customs register is performed for the term either to 6 months or to 1 year.

In case of disclosing the violation of the rights, their customs formalizing is stopped. The infringing goods are subject to placing in the store houses of the temporary keeping or in the store houses of the State customs.

The decision about stopping the customs formalizing of products is taken for the term of up to 15 calendar days and can be prolonged not more than for 15 calendar days.

The objects are excluded from the Register:

  1. in case of the end of the registration term;  
  2. by the application of the right holder or his representative;
  3. under the court decision;
  4. in case of the expiration of the term of the legal protection of the object;
  5. in case of the recall of the performed  pledge or any other equivalent guarantee by the right holder or his representative before the end of the registration term;
  6. in case of founding the unreliability of the information about the object, included to the customs register, submitted by the right holder or his representative.