On September 5, 2005, in Alushta (Crimea) the 9th International Scientific Practical Conference «Intellectual Property: Issues of the Day» started, which was organized by the State Department of Intellectual Property.
The majority of the participants were interested in the training «Sitting of the Court: Violation of Intellectual Property Rights». Such training was held the first time at IP Conferences.
A suit from the French company BELVEDERE S.A. against the Ukrainian company Hetman Co Ltd. and the State Department of Intellectual Property, and also a counter-claim from Hetman Co Ltd against BELVEDERE S.A. and the State Department of Intellectual Property was tried at the sitting. This trial was really held a few years ago, a decision under which was made by the Superior Commercial Court.
The participants of the trial were representatives from Konnov & Sozanovsky Ms. Julia Semeniy and Ms. Galina Mykoleno (plaintiff party), attorney from patent-law firm Dubinsky & Osharova Mr. Anton Koval (respondent party), representative of the State Departmrnt of Intellectual Property Mr. Dmitriy Kartushin, Commercial Court Chamber, voluntary panel of judges, court experts.
Point at issue are the rights of the plaintiff for industrial design «Bottle» under patent #1429 and for international registration of three-dimentional mark #662883 (both objects are identical); and also rights of the respondent for three-dimentional mark «Bottle «HETMAN» under Ukrainian Licence #11206.
In spite of the fact that the participants of the trial were tightened by the framework of the real case and conditions of the training, they could approach the situation inventively and show analytic abilities during the prior preparations of the trial documents as well as during their appearance in court.
The main dispute was raised under the initial suit of the plaintiff's representatives concerning comparison of the objects appearance, rights for them belonging to the plaintiff and the respondent; and also under rise of exclusive rights for industrial design and trademark.
The plaintiff representatives insisted that the appearance of the three-dimentional mark of the respondent reflected essential features of the industrial design of the plaintiff, and that non-essential distinctions do not effect general visual impression, made by the objects. This opinion was supported by the majority of the audience who had a chance to express their thoughts during the debate of the panel of judges. Unfortunately, this position was not confirmed while the commission of experts; however it is accounted for the fact that the experts made their conclusions on the basis of the materials provided by the organizers; they didn't give the full effect of the objects.
Concerning the matter of rising the rights for industrial design and trademark, the plaintiff constructed his evidence on the fact that filing for industrial design gives itself certain rights to the declarant. Besides, on the plaintiff's opinion the grant of patent for industrial design, existing before licensing the mark, should be taken into consideration while substantive examination of the mark. Such a non-typical approach was marked by the head of the panel of judges. However the court remained with the previous viewpoint that as far as the rights for industrial design act from the date of publication about grant of patent and the rights for mark act from the date of filing, the registration of the trademark being filed before publication about grat of patent is lawful.
As it was expected, the court decided the same as in the real case: refused to the plaintiff under the main suit and to the respondent under the counter-claim. The same decided the voluntary panel of judges constructed of members of the Ukrainian Association of Patent Attorneys. However in the further discussion of the trial some members of the panel supported single arguments of the plaintiff representatives.
After the court training the audience and the participants shared their impressions, thus one can make the conclusions that everybody enjoyed the action.