Download Journal №2, 2014

INTELLECTUAL PROPERTY THEORY

Burlakov S.

Interbranch relations of intellectual property rights

P. 5–14

The essence of intellectual property rights and its place in the law are considered in the article. A particular attention is paid to the interbranch relations of intellectual property rights.

Insufficiency of general norms of civil law and unacceptability of norms of property rights for the regulation of relations connected with ideal results of intellectual activity are causing the formation of a number of special institutions that mediate the latter. The major ones of them are the copyright, related rights, patent rights, rights on company (brand name) names, trademarks and other means of individualization of a legal entity, products and services.

Basic rules of these institutions are concentrated in the Civil Code of Ukraine, special civil laws and international conventions with Ukraine. Some provisions of the special institutions of civil law are parts of the complex of laws and other legal acts containing some rules of constitutional, administrative, financial, employment, procedural and criminal law.

Copyright, related, patent and similar rights, being exclusive rights, are providing their holders a legal monopoly of committing various acts (using the results of creativi-ty and disposal of them) banning of similar actions for the all other persons simultaneously.

Intellectual property rights emerged centuries ago in many countries in response to the massive use of the commodity-money system in the area of intellectual activity and onerous transfer of rights of use of its results.

Identifying similarities in various institutes that mediate sphere of intellectual activity is useful for the development of the legal theory, legislation on enforcement and study of law. But this is not enough for the construction of complex institute in the integrated system of civil law that would mediate the all forms of creative activity, legal protection and use of its results. Similarity or even identity of the functions, such as copyright and patent rights, does not mean necessity of inclusion of the latter in copyright law in the broad sense. There are fundamental differences between the types of intellectual property rights that cause the separation of both the civil law system in general, and in the framework of intellectual property rights. Thus, copyright law protects the form of creation primarily. For the acknowledgment of a mental work of a copyright object, it is enough the implementing it in an objective form. For the direct legal protection of an invention, utility model or industrial design, the act of its qualifications by the competent public authority is required.

Key words: intellectual property rights, civil law, interbranch relations

COPYRIGHT

Kashyntseva O.

The necessity of the protection of the content of scientific works in the field of medicine under the Copyright Law

P. 15–20

The Legal regulation of relations in the sphere of creation and implementation of rights to results of intellectual activity in the health care is mainly in the field of Patent Law. The legal instruments of copyright usually occupy a secondary place beyond academics and researchers. Instead, the copyright law is has effective instruments to protect moral rights and intellectual property rights.

Works of art as well as scientific works are consisting of the form and content. Ukrainian Copyright Law does not protect the contents of the work. This provision is directly recorded in p. 3. Art. 8 of the Law of Ukraine «Copyright and Related Rights». Under the mentioned Law, legal protection extends only to expressions of the work and does not extend to any ideas, theories, principles, methods, procedures, processes, systems, methods, concepts, discoveries, even if they are expressed, described, explained, illustrated in product.

However, there are structural elements in any works as the objects of Copyrights Law. Some of them are relating to the form of the work, the others — to its content. Thus, in art works the main role to express the form elements are playing the followings: language (it can be artistically expressive or rather lean), artistic images, sequence of events, the characteristics of the characters, etc, and the elements of content — a topic idea, intrigue, morals, etc. The content of the work is always objectifying in a form of expression. Instead, in the scientific work the main role is playing by the form of language elements, sequence of presentation, logical chains, etc., as the elements of content — scientific ideas, achievements, scientific suggestions, facts, results of experiments and etc.

We suppose that in recent years the legal science do not pay enough attention to the development of legal instruments of copyright law to protect the content of scientific works. We should actively lead a discussion on the development of the theoretical basis of the concept of copyright which would base on the concept oppositive to the exiting one. New concept of Copyright should develop the legal instruments for the protection of the content of scientific works.

In fact, most copyright identity is manifested in the uniqueness, the works should be uniqueness. In consequence of this it is unnecessary to follow any formalities for the emergence of copyright (fixing priority, registration, etc.). However, if it can be argued that the decision to waive formalities in the sphere of copyright is a great achievement of it. However, such legal background of the protection of works in the science, especially in the field of clinical medicine, could not satisfy authors of scientific works and as a result they prefer the Patent Law which creates the conflict between the rights of patent owner and patient rights on the assessment to the medical treatment.

The other important legal question is whether further objectification of the results of scientific activities not only in the form of scientific works (books, articles, etc.), but also in treatment protocols of appropriate nosology (the lasts are the norms, approved be the Ministry of Health Care) deprives them of legal protection under the Copyright Law. We share the position of scientists who consider it appropriate to draw attention to the «neighboring» institute of intellectual property in the analysis of the other. Unfortunately, we underestimate the similarities and differences overestimate Copyright and Patent law. The lack of a legal balancing does Copyright protection not effective tool of scientific works.

Keywords: copyright law, scientific works, content of the works, form of the works, the legal protection of scientific works, medicine

FORENSICS

Prokhorov-Lukin H., Doroshenko O.

Actual questions of the pharmaceutical trademarks forensic examinations

P. 21–29

In court practice related to infringements of intellectual property rights, cases on the competing of pharmaceutical trademarks take a noticeable place. The main question, which is usually placed before the experts in these cases, is the issue of trademarks confusing similarity.

To solve this question we must resolve at least two expert tasks: 1) to find out the similarity (homogeneity) of goods in respect of which the competing trademarks are registered, and 2) to discover objective characteristics (phonetic, graphic, semantic) of studied trademarks, to establish their similarities and differences in the process of comparative study of signs and to determine the essentiality of these characteristics for expert task solving. Solving of these problems is complicated at least by two factors: a) by the absence of legal definition of a notion of similarity (homogeneity) of goods (services) and b) in consequence of belonging of one or both trademarks to prescription pharmaceuticals.

One of the situations that occur in the practice of dispute resolution concerning competing pharmaceutical trademarks, is the situation where one trademark is registered for a wide range of the pharmaceutical products, and another — in relation fairly narrow group of drugs, which are also dispensed only by prescription.

For example, both opposed trademarks registered in respect of goods of 5 class of Nice Classification, one — in respect of goods «pharmaceutical products», and another — in respect of goods «anticancer drugs». Competing trademarks are the verbal and similar in phonetic and graphic features. At the same time the first owner of the trade mark at the time of arising a dispute does not manufactured anticancer drugs, but his right to use the trademark in relation to these drugs has not been challenged.

The term «pharmaceutical products» covers anticancer drugs, and in this sense these products are related. Since no logical arguments cannot exclude the probability of producing by the owner of the first trademark anticancer drugs in the future, it is impossible also rule out the likelihood of confusion of the above trademarks. Could prevent the likelihood of confusion the fact that the second trademark registered concerning prescription medicines?

Analysis of publications indicates that confusion of the drugs names are actually an expand occurrence. Thus, the analysis of 469 reports of fatal errors in the U.S. for 6 years (Phillips J. et All. JAMA, 1998, 279, 1200-5) showed that 8.9% of these errors were due to confusion of drugs names. According to the World Health Organization report [2012], similar names of drugs lead to 1/3 of all medical errors.

Among the reasons for drug therapy errors that led to adverse effects on human beings until the threat to life and even death, particularly distinguished:

The difficulty of recognition when using similar packaging or similar-sounding names of drugs;

Rewriting prescriptions drugs, especially when the writing of physician is illegible;

Confusing of drugs by pharmacists.

Thus, belonging of pharmaceuticals to prescribed medicines does not preclude the likelihood of confusion of trademarks that are similar in phonetic, graphic or semantic features.

Key-words: court expertise, trademarks

INTERNATIONAL EXPERIENCE

Romashko A., Verba I., Lemberg Ya.

Classification of principal international contracts in the field of intellectual property

P. 30–37

Taking into account the importance of study and practical use of international agreements in the field of intellectual property expediently, the hierarchy of this agreements and their intercommunication, taking into account objects of intellectual property rights which to them belong and without the account of fact of signing or introduction to the action of this agreements on territory of Ukraine are considered.

Classification of international agreements, which are administered by WIPO on the basis of agreements which fall under the action of Parisian convention, Bern convention, Roman convention, is carried out, and intercommunication between WIPO is rotined and by International Union on the guard of new varieties of plants, and also their connection is rotined with the TRIPS Agreement.

Key-words: intellectual property, international treaties, intellectual property objects, classification of international treaties

SCIENTIST’S VIEW

Onistrat O., Zaykivskiy O., Lotokha L.

The problems of implementing the right of the Ministry of Defence of Ukraine to the results of intellectual activity

P. 38–41

The problems of implementing the right of the Ministry of Defense of Ukraine to the results of intellectual activity created in the performance of research and development work of defense

Keywords: rights of the Ministry of Defense of Ukraine on results of intellectual activity, performance of research and development work of defense

Rusakova M.

Comparative characteristics of the legislation of Ukraine and the Russian Federation in sphere of protection of intellectual property rights on the Internet

P. 42–56

Article is devoted to the comparative characteristics of the regulatory framework of Ukraine and the Russian Federation in sphere of protection of intellectual property rights on the Internet. Identified and substantiated tendency to change the legislation examined in both countries. Were analyzed not only legal but also economic consequences of submitting laws. Based on the authors research a number of positive and negative indicators were registered in both existing Russian legislation and the adoption of the proposed draft law of Ukraine.

Key words: Internet, rights protection, comparative analysis of the law

К. Konyushko

Institutional mechanism for dealing with tax disputes: the concept and the basic elements

P. 57–63

This article analyzes the approaches of the tax law theory to determine institutional mechanisms for dealing with tax disputes. It is emphasized that the analysis of conflict resolving tax disputes about the lack of a sustainable tradition of using non-judicial mechanisms for resolving tax disputes. Meanwhile, deficiencies of resolving tax disputes can not be considered as the main measure of state control in the tax system. However, it is essential for the quality of the system as a whole, the improvement of enforcement by both taxpayers and tax authorities.

The basic item developed by domestic and foreign scholars in understanding of tax disputes in the light of the institutional mechanism. The analysis uncovered approaches to understanding the concept of the term institutional mechanism in general and its key elements in the theory of law. Through the prism of the theoretical and legal approaches and democratic orientation of social development it understands generalizations about institutional mechanism for consideration of tax disputes.

The mechanism of resolving tax disputes is examined from the standpoint of its institutional content, in the light of the legal means by which it is solved, and the system of bodies (institutions) whose efforts have applied for solving it.

Keywords: institutional framework, tax dispute, institutional mechanism basic elements.

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№ 2 (76), 2014
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