PROTECTION OF INTELLECTUAL PROPERTY RIGHTS UNDER THE CIVIL CODE OF UKRAINE: PROBLEMS AND PROSPECTS FOR RENEWAL

Abstract

The article analyzes the general problems of intellectual property rights protection in the current Civil Code of Ukraine and outlines the prospects for their solution in the Draft of the updated Civil Code of Ukraine. Attention is drawn to the imperfections of Article 431 of the Civil Code of Ukraine, the norms of which are more declarative than regulatory in nature. The specified article unreasonably identifies the legal consequences of intellectual property rights violation with liability. In addition, the correlation of the concepts of “violation” and “encroachment” fixed in it is not consistent in this part with the norms of special legislation on intellectual property. In this regard, the article emphasizes the expediency of regulating in this article of the Civil Code of Ukraine issues regarding the grounds and procedure for protecting intellectual property rights. As for the grounds for protecting intellectual property rights, when resolving this issue, it is worth taking into account, among other things, the possibility of applying preventive protection in intellectual property relations. Accordingly, the grounds for protecting intellectual property rights are infringement, disclaimer or contesting of these rights, as well as the creation of a threat of their infringement. In the question of forms of protection of intellectual property rights, it is necessary to proceed from the principle of pluralism of possible forms of protection of this right. Accordingly, protection of intellectual property rights can be carried out both in court and in another manner established by contract or law. In terms of remedies of intellectual property rights, the problems of the current Civil Code of Ukraine are that the norms enshrined in it on the remedies of such rights are not norms of direct action, as well as the lack of a clear distinction between the remedies of rights and other measures that have a procedural nature. In this regard, in the updated Civil Code of Ukraine, it is proposed to set out the norms on the remedies of this right as norms of direct action, the application of which should not be made dependent on the existence of appropriate specification or detailing at the level of special legislation. It is also advisable to clearly distinguish between the remedies of intellectual property rights, on the one hand, and other measures to protect intellectual property rights that can be applied by the court (securing of evidence, security for claim), on the other hand.