JUDICIAL AND ECONOMIC MECHANISMS OF PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN UKRAINE: PROBLEMS AND PROSPECTS

Abstract

The article highlights the current problems of improving judicial and economic mechanisms for the protection of intellectual property rights in Ukraine, taking into account the positive foreign experience and international law in this area. Threats to society and states from illegal activities in the field of intellectual property, which leads to Ukraine in the Top 5 countries (annual “Special Report 301” USTR) with the largest shadow economy, a significant share of which are shadow transactions in the field of intellectual property. Therefore, de-shadowing becomes one of the main priorities of state policy in the field of intellectual property, which forms respect for the right to intellectual property, ensures its establishment in society and the state and effective protection of bona fide rights holders. It is emphasized that the steps of Ukraine to establish the National Intellectual Property Authority (NIPO) and to improve the protection of intellectual property rights are important, but insufficient without further strengthening of judicial and economic mechanisms for the protection of intellectual property rights. The preconditions for the normalization of special courts in Europe in the context of the separation and constitution of the judiciary as an independent branch of public power in the context of the implementation of the doctrine of Sh.-L. Montesquieu XVIII-XIX centuries. It was found that the first special courts on intellectual property in Europe were established in the Constitution of Prussia in 1850, which in Art. 91 established that “Courts should be established by law for special categories of cases, especially commercial and industrial courts in such places where they are necessary.” Subsequently, patent and other courts have been established in Germany, the United Kingdom, the United States, and other Western democracies to hear disputes over intellectual property rights. In Ukraine, as in some other post-Soviet republics, specialized intellectual property courts appear in the 21st century. At the same time, expectations of success from their activities were not always justified. In particular, the Supreme Court of Intellectual Property (SCIP), which was envisaged by the judicial reform of 2016, has not yet started its work. The key issues related to the judicial protection of intellectual property rights in Ukraine are identified and analyzed, in particular, the problem of the functioning of the Supreme Court of Intellectual Property. Among them, the following problems: the lack of a clear state and legal position on the separation of disputes about civil, commercial, criminal and administrative proceedings, exclusively on the object of dispute, namely – the objects of intellectual property rights, and their classification exclusive competence of the single specialized court of SCIP; optimization of terms of consideration of disputes concerning the right to intellectual property objects in general, economic, administrative courts and, in the long run, SCIP, etc. Suggestions for solving these problems are substantiated.