UKRAINE Law and Practice Contributed by: Yaroslav Ognevyuk, AMBASSADORS
Partial designs are recognised and may be protected, provided the claimed portion of the product has its own identifiable visual characteristics. The scope of protection depends on how clearly such elements are defined in the application and how they are visually represented. Functionality arguments are frequently raised in invali- dation proceedings. Because industrial designs are registered without substantive examination, chal- lenges based on technical necessity are a common defence strategy. Designs that appear valid at the reg- istration stage may be vulnerable if their key features are shown to be function-driven. The boundary between design and function in Ukraine is not fixed at the filing stage but is actively tested in disputes. Effective protection depends on demon- strating that a product’s visual features are not merely incidental to its function but reflect genuine design choices. Trade secret protection in Ukraine is governed by a combination of civil, commercial, and unfair compe- tition legislation, broadly aligned with international standards, including the TRIPS framework and ongo- ing EU approximation. However, unlike registered IP rights, trade secrets operate as a decentralised form of protection, where enforceability depends less on formal recognition and more on internal control and evidentiary discipline. This becomes particularly rel- evant for cross-border technology businesses operat- ing in Ukraine. Information qualifies as a trade secret where it meets three core criteria: it is not generally known or read- ily accessible, it has commercial value by virtue of its secrecy, and it is subject to reasonable measures to maintain its confidentiality. While these elements reflect a standard international test, their practi- cal application in Ukraine is highly fact-specific and increasingly shaped by disputes in technology-driven sectors. 5. Trade Secrets 5.1 Legal Framework and Protectable Information
Trade secrets play a central role in industries where innovation cycles outpace formal IP protection, includ- ing IT, fintech, cybersecurity, and emerging miltech sectors. In these sectors, proprietary algorithms, data- sets, system architectures, and operational models often provide greater commercial value than registra- ble IP. In defence-related technologies, the boundary between trade secrets, know-how, and regulated confidential information requires differentiated protec- tion strategies. The distinction between confidential information and trade secrets is especially relevant in the context of employee mobility, outsourcing, and cross-border collaboration, including in Ukraine’s IT outsourcing sector, where these risks are constant. A defining feature of trade secret protection in Ukraine is its evidentiary nature. This is where many claims fail: not because the information lacks value, but because protection measures cannot be demonstrated. With- out demonstrable control, trade secret protection is unlikely to survive judicial scrutiny. This is often the decisive factor in whether a claim succeeds or fails. Courts focus on the content of the information and whether the owner has implemented concrete and consistent measures to preserve secrecy – includ- ing access controls, contractual safeguards (NDAs, employment agreements), internal policies, and tech- nical protections. In the absence of such measures, claims for misappropriation are likely to fail, regardless of the information’s intrinsic value. At the same time, digitalisation has introduced new layers of complexity. The protection of trade secrets increasingly intersects with data governance, cyber- security, and incident response. Disputes often arise not from deliberate theft but from uncontrolled data flows, insufficient access segregation, or inadequate documentation of ownership and control. Trade secrets in Ukraine function not as a passive legal category, but as an actively managed asset requiring continuous control and documentation. Their protection depends on the ability to combine legal structuring, technical safeguards, and organisational discipline – particularly in high-risk, high-innovation sectors.
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