EMERGING

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<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues Thus, it is possible to sum up that preventive measures are widely used in foreign countries. The character of these temporary measures meets the substantive provision of EU Directives and at the same time has the specific national differences. Going back to the application of preventive measures procedure while securing intellectual ownership rights for the objects of copyright in Ukraine it should be noted that in accordance with articles 431, 433 ECP of Ukraine a person who believes that his rights are violated or there is a real threat of their violation, has a right to appeal to the economic court with a statement about the use of preventive measures prior to the lawsuit giving the following information : 1) the name of economic court to which the application is sent ; 2) name of the applicant and the person in relation to which preventive measures are asked for, their postal addresses; the documents which confirm the status of subject of entrepreneurial activity of a claimant-citizen; 3) type and essence of a preventive measure 4) circumstances which a claimant grounds as necessity to apply the preventive measures 5) a list of documents and other proofs which are added to the statement; 6) signature of the claimant or his representative, if handed by a representative. The documents which confirm payment of state duty in order and amount set by the law 1 are added to the application about the use of preventive measures . In accordance with item 4 of article 433 ECP of Ukraine petition about the use of preventive measures should contain circumstances by which a claimant grounds the necessity to use preventive measures . Such circumstances are to conform to the orders of article 43¹ ECP of Ukraine, and according to the context of item 5 of article 43³ and part 3 of article 434 ECP of Ukraine also and to confirm by the proper proofs, obtaining on demand and the estimation of which is carried out by an economic court according to general rules of ECP of 1 It should be noted that the Act of the Cabinet of Ministers of Ukraine „On state duty” does not provide for the amount of state duty from the application on preventive measures. That is why, until such changes are made in the mentioned Act the economic court has no legal grounds to make decisions on considering such an application without movement because it was not paid as state duty (part 1 article 43 5 ECP of Ukraine). The law does not provide for payment of expenses for information-technical maintanance of the court proceeedings on application of preventive measures. Page 108 Volume 1, April 2009
<strong>EMERGING</strong> MARKETS: A Review of Business and Legal Issues Ukraine on proofs. In particular, a claimant has to present proofs, sufficient for the confidence that his right is violated or inevitably will be vilated as well as proofs of available right of intellectual ownership (information about registration of the right on the object of intellectual ownership right, proper legal actions, etc.). Among such proofs, for example, can be copy of couterfeit disk containing software, database or cinematographic work purchased by an author together with a check about its purchase, a copy of CD-,DVD cover, a copy of a book which has signs of imitation (change of design, off-grade paper, reformating,etc.). According to part 2 of article 43³ ECP of Ukraine together with a petition on the use of preventive measures its copies are distributed in accordance with the number of persons in relation to which preventive measures are asked. However, in accordance with item 14 of the Recommendations of the Presidium of the Higher economic court of Ukraine „On some practical issues of solution to disputes related to protection of intellectual ownership rights” [17] and item 5 of the Circular of the Higher economic court of Ukraine „On some issues of practical application of preventive measures” of 20.04.2007 No. 01-8/251 the norm does not make mandatory for the economic court to distribute these copies. The copies of statement can be handed to the interested persons during its consideration, carried out in accordance with article 434 ECP of Ukraine. If a person in relation to whom preventive measures are asked for did not receive copies of the proper statement or a waiver of receipt of such a copy, such situation is not an obstacle for consideration of the statement. Part 1 of artcile 434 ECP of Ukraine obligates an economic court to inform the interested persons about consideration of a statement about the use of preventive measures by the court. It is necessary to note in connection with this that the information about the time and place of a statement consideration for the interested persons is carried out by an economic court by making the proper decision keeping to requirements of article 86 ECP of Ukraine, and should it be necessary - by sending a telephone message, teletype message, using electronic communication means,etc. (item 14 of Recommendations of Presidium of the Higher economic court of Ukraine from 10.06.2004 No. 04-5/1107 „On some practical issues of solution to disputes related to protection of intellectual ownership rights”). Page 109 Volume 1, April 2009
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EMERGING

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