UKRAINE Law and Practice Contributed by: Oleksandr Mamunya, Ganna Prokhorova, Anastasia Mindrul and Oksana Padokh, Mamunya IP
• in specific cases, the amount of material and/or moral damage, and the causal link between the infringer’s actions and the harm caused. In copyright disputes, the plaintiff must prove: • the plaintiff’s ownership of copyright or the right to their protection; • the fact of unauthorised use of a copyrighted work; and • in claims for compensation for material and/ or moral damage, the extent of the damages and the causal relationship between the harm suffered and the actions of the infringer. Unfair Competition The Law of Ukraine on Protection Against Unfair Competition imposes liability for the unlawful use of the business reputation of an econom - ic entity, including the unauthorised use of an entity’s trade mark or similar designations in economic activities, which has led or may lead to dilution of the activities of such entity. The Anti-Monopoly Committee of Ukraine enforces liability for unfair competition in Ukraine. Rights to unregistered marks may also be protected by filing a complaint with the Anti-Monopoly Com - mittee of Ukraine. Cybersquatting Unauthorised use of trade marks in domain names is unlawful. Thus, the rights-holder has the right to bring an action to cease such use of a trade mark in domain names, with the termi- nation claim of the delegation or transfer of the domain name that infringes on trade mark rights. 7.3 Factors in Determining Infringement According to the Trade Mark Law, the use of a trade mark or a confusingly similar designation without the consent of the rights-holder consti -
tutes infringement. However, there are excep - tions where the use of a trade mark does not require the consent of the rights-holder (refer to 9.1 Defences to Trade Mark Infringement ). The unauthorised use of an author’s work is deemed unlawful under Ukrainian legislation. Simultaneously, the Copyright and Related Rights Law provides an exhaustive list of excep - tions that permit the use of copyright objects without the rights-holder’s consent (refer to 9.2 Defences to Copyright Infringement (Fair Use/ Fair Dealing) ). 7.4 Prerequisites and Restrictions to Filing a Lawsuit In Ukraine, no prerequisites exist for suing a trade mark or copyright infringer. While it is com - mon, not mandatory, for the owner to send a cease-and-desist letter before filing a lawsuit, the claim should mention any prior attempts to resolve the issue out of court. Additionally, considering a case’s specifics, the court may require the plaintiff to deposit a sum of money into the court’s account to secure potential reimbursement of the defendant’s legal costs. This applies if the claim seems obviously unreasonable or for an abuse of the right to sue. 7.5 Lawsuit Procedure Jurisdiction Trade mark and copyright disputes, including infringement proceedings, between individuals or individuals and legal entities fall under the jurisdiction of civil courts. Disputes between legal entities should be heard by commercial courts. These rules apply to first, second and third instances.
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