№ 3 (77), 2014

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Rabotiagova L.

Systematization of the legislation of intellectual property rights in Portugal

P. 5–11

The article describes the systematization of the legislation of intellectual property in Portugal, which has a constitutional and legal regulation. The country has the Code of Copyright and Related Rights (approved by Law No. 45/85 of September 17, 1985) and the Industrial Property Code (approved by Decree-Law 36/2003 of 5 March, 2003).

Industrial Property Code contains 358 articles combined into five books: Title I «General part» (Art. 1–50); Title II «Industrial property law» (Art. 51–315), Title III «Infringements» (Art. 316–345); Title IV «Fees» (Art. 346–354); Title V «Industrial Property Bulletin» (Art. 355–358).

It is analysed in detail the structure and content of the books that regulate the legal protection of inventions, utility models, topography of semiconductor products, designs or models, trademarks, awards, trade name and insignia, logotypes, appellations of origin and geographic indications and books dealing with general issues of administrative procedures related to obtaining rights to industrial property and their protection.

It was concluded that the Industrial Property Code is a complex legal act containing norms of civil, administrative and criminal areas of law that are associated with the sphere of intellectual property. The industrial property is regulated at two levels: the first – the Industrial Property Code; the second – special Laws and departmental Rules, which regulate in detail the provisions contained in the Code. This primarily refers to the administrative and legal regulation procedures for acquiring rights to industrial property.

Key words: intellectual property, legislation of Portugal

Shtefan O.

The lawsuit in cases arising from author’s legal relations

P. 12–25

This article focuses on the scientific doctrine of a lawsuit. Using the method of comparative historical analysis the author traces the path of the development of the lawsuit doctrine since Roman times up to the present day. The author stops directly on the most important periods of development of the theory of lawsuit, namely: Ancient Rome, Napoleonic France, achievements of the German philosophers of the XIX century, pre-revolutionary researches of legal process specialists, soviet period and modern researches.

The paper shows the influence of German philosophical idea on the formation of the doctrine of lawsuit on the territory of the Russian Empire, in turn, was influenced by pre-revolutionary legal process specialists on the development of the doctrine of the lawsuit in the Soviet period. It is concluded that the basic approaches to the determination of the lawsuit can be seen in recent studies of this problem.

Taking into account the conducted study it was offered to understand the lawsuit as a recourse (requirement, petitions) of the concerned person (the plaintiff or other authorized person, or by law) to the court of its acceptance of the proceedings to consider and resolve the substantive requirements (on a civil case and its consideration) brought by them to another person (the defendant) with the aim of the protection of controversial or violated copyrights in established way and on that basis.

Keywords: doctrine about the lawsuit, the concept of lawsuit, lawsuit, defense of violated and controversial rights and legitimate interests, action proceedings, civil proceedings.

A. Shtefan

Modification or termination of the legal relationship as a mean of copyright protecting

P. 26–32

Legal relation is the result of specially-legal forms of regulation and is expressed in conscious mutual behavior of specific subjects, caused by matching by the content of subjective rights and legal responsibilities.

Legal relation arising from copyright, primarily appearing from the creation of the work (Section 2 Part 2 of Art. 11 CC of Ukraine), when one party of relations is an author, and the second is the whole society in general and each of its members in particular who undertake not to interfere in the implementation of the author’s rights and to refrain from copyright infringement. As bases of relations in the sphere of copyright are contracts and other transactions (Section 1 Part 2 of Art. 11 CC of Ukraine), causing of material and moral damage (Section 3 Part 2 of Art. 11), and other legal facts (paragraph 4 Part 2 of Art. 11).

When one change or terminate the contract due to a substantial breach of the contract one should be aware that such a violation is considered essential, in which subsequently harm caused by violation of the second party is largely deprived of what one expected signing the contract. The doctrine has criteria of fundamental breach of contract:

1) The nature of the breach of contract – breach of conditions must be rough when the debtor has not commenced the implementation of the commitments on time and holds a long overdue;

2) The correlation of performed and non-performed obligations – substantial breach often manifests when the volume of actual performance is less than half in contractual obligations;

3) The desirability of maintaining the treaty, taking into account the nature of the infringement – preservation of the contract is usually not advisable, if the debtor does not eliminate the violation or fails to fulfill the obligation to the creditor or lost interest in the undertaking.

Change of the contract in connection with a significant change in circumstances permitted by the court under the conditions stipulated by Part 2 of Art. 652 CC of Ukraine. In a situation of the change of circumstances no distortion will of the parties at the conclusion of the contract, and to signs of significant change in circumstances does not include a change in circumstances, the acts and omissions of the participants incorrectly recorded in the contract circumstances, changes in financial condition, the adoption of new regulations do not affect the terms of the contract.

Keywords: legal relations, breach of a contract, copyright protection

O. Butnik-Siversky

Documentary evidences related to the losses incurred by illegal usage of intellectual property objects

P. 33–44

The Article is devoted to the issue of documentary evidences in the field of intellectual property in economic research related to the losses incurred by illegal usage of intellectual property objects in compliance with the sequence of their formation according to the requirements of legal acts of Ukraine. The article provides primary documents, accounting registers, financial, tax and statistical forms, which contain information about intellectual property rights and/or information about intellectual property objects as intangible assets that should be considered by judicial experts, specialists and investigators, who justify accusations regarding illegal usage of intellectual property objects.

Practice indicates a problem of obtaining evidential materials during pre-trial and trial investigation, particularly due to improper keeping of primary documents in the system of accounting and statistical accounting, imperfect financial and legal relations regarding intellectual property objects. Not fully execution of primary documents in the system of accounting and statistical accounting of intellectual property objects in intangible assets limits the possibility of determining the amount of the actual losses incurred by illegal usage of intellectual property objects.

Economic research in the field of intellectual property — is a research with a method of economic analysis of identified and fixed economic indicators on the date of research, describing the execution of the rights on intellectual property objects in intangible assets of the entity. It is emphasized that this is where the judicial expert (specialist) obtains necessary information, which is a result of investigation, and used later in the court decisions. Difficulty of the problem is that the required information may be not full or have «failures» without keeping the procedure of its execution set out in legal acts. At the presence of primary and other documents, economic research in the field of intellectual property related to the losses incurred by illegal usage of intellectual property objectsis to be held in the appropriate directions. It is noted that at illegal usage of intellectual property objects in intangible assets, entities operate in different legal conditions, namely on the legitimate and illegitimate basis of income (profit).

Keywords: documentary evidence, illegal use of intellectual property objects, primary documents

Matskevych O.

Correlation between commercial name and domain name

P. 45–53

Modern market conditions of contest for a consumer make unambiguous identification of a company and its activity increasingly important. The lack of appropriate legal regulations led to widespread cyber squatting – the illegal registration of a domain name which coincide with the commercial name of the rights owner. The main reason of cyber squatting is the opportunity to make illegal income by the resale of registered domain names that were not registered on time or failed to register.

It is investigated the legal nature of commercial names. Different approaches to defining the same term — commercial name, firm name, trade name — also studied by the author.

The author compares domain and commercial names, their functions, and highlights and describes the main function of both — individualization. The other important function of commercial names is a function of guarantee — company’s name assures customers that its products belong to the company, not to someone else.

The analysis of problems of registration of commercial and domain names is made. The foreign experiences in registration of domain names in a case of coincidence with commercial names of other rights holder are also illustrated.

In summary, the author concluded that, unlike many countries, the laws of Ukraine are not regulated the matter of the legal guarding of commercial names, and their protection against illegal use in domain names. Nowadays there is no specific law on commercial names, as well as any statutory instrument that would set peculiarities of regulating of relations in the sphere of Internet and domain names. This can lead to difficulties in the interpretation and enforcement of legal norms in the proceedings where the interests of the owner of the commercial name intercross the interests of the holder of an identical domain name.

It seems to be necessary to create a registry of commercial names and implementing of an appropriate statutory document on the conduct of such register and the process of registration. At the same time the principle of entry into force of the commercial name since its first using should remain unchanged.

Key-words: commercial name, domain name, Internet, cyber squatting.

O. Yampolska

Trademark law issues related to repackaging of pharmaceutical products in the European Union

P. 54–63

This article examines trademark law issues related to parallel imports of repackaged medicines in the EU. Further to the analysis of numerous decisions rendered by the EU courts and publications on this subject, the author systematically classifies the conditions applying to legality of drug repackagingwith a view of subsequent parallel imports thereof in the EU Member States.

Key-words: trademarks, EU, pharmacutical products

Mishev M.

Defend the Flag. Protection of Foreign State Emblems, Official Hallmarks, Names and Emblems of Intergovernmental Organizations in the United States

P. 64–70

The author makes an analysis of causes of failures in the registration of trademarks in the United States on the grounds of use of flags, emblems or other distinctive signs of foreign states.Key words: flag, coat of arms, official hallmark, trademark