UKRAINE Law and Practice Contributed by: Oleksandr Mamunya, Ganna Prokhorova, Nataliia Badora and Ihor Kharytonov, Mamunya IP
and the court may grant it fully, in part or not at all, but is not allowed to go beyond the scope of the demands determined by the plaintiff. Enforcement Monetary remedies granted by the court are col- lected by the State Enforcement Service and/ or by licensed private bailiffs. They may also enforce non-monetary remedies, the enforce- ment consists of official notification of the defendant to cease, refrain from or perform certain action ordered by the court. Failure to comply can result either in a fine imposed by the bailiff or in referral to law enforcement for prosecution of wilful failure to enforce the court decision. The prevailing plaintiff may also be entitled to reimbursement of their litigation costs (see 8.3 Responsibility for Paying the Costs of Litiga- tion ). 6.2 Rights of Prevailing Defendants The prevailing defendant may be entitled to reim- bursement of litigation costs (see 8.3 Responsi- bility for Paying the Costs of Litigation ). 6.3 Types of Remedies There are no different types of remedies for dif- ferent technical intellectual property rights. All patents for inventions/utility models as well as commercial secrets provide for the same rem- edies. 6.4 Injunctions Pending Appeal A judgment of a first instance court on merits is not enforceable until the 20-day term for filing an appeal expires or until the Court of Appeals considers an appeal. Therefore, there is no need for a stay of enforcement at the appellate stage.
The judgment becomes enforceable immedi- ately upon its review by the appellate court or upon expiration of the term for filing an appeal. If a cassation appeal is filed, the Supreme Court may grant the stay of enforcement on a partici- pant’s motion or its own initiative. 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings There are no special provisions concerning the appellate procedure for intellectual property rights – appeals in IP cases are heard under gen- eral rules of appellate review per the respective procedural code (Commercial or Civil). 7.2 Type of Review An appellate court may review both the facts of the case and the application of law. It considers evidence related to arguments presented in the appeal and the response to the appeal. Evidence not filed with the court of first instance may be accepted only in exceptional situations. If the appellate court finds that the first instance court erred in matters of fact or law, it may cancel the first instance judgment on merits and issue a new judgment. Supreme Court review is limited to matters of law. If the Supreme Court finds that the lower courts erred in applying the law, it may cancel their judgment(s) on merits and issue a new judgment based on facts determined by the lower courts. If it finds that the lower courts erred in the determination of facts, it may cancel their judgment(s) and remand the case to the first instance court or appellate court for reconsid- eration on merits.
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