Newsletter, October 25, 2006 (English version)

Amendments to the Procedure of Consideration of Cases Concerning Violation of Legislation for the Protection of Economic Competition in force as from September 20, 2006.
The Procedure of Selling State-Owned Land with Privatization Targets on it in 2006 has been finally adopted.
Law of Ukraine On the governmental control of activity in the field of transfer of technologies of September, 14, 2006 N143-V.
Leading Legal Practice Publishing of Ukraine was granted a Ukrainian certificate for the "red colour" trademark for "periodical printed media on judicial subjects".

"Yuridicheskaya Practica" (Legal Practice) Publishing was granted the Ukrainian Certificate for the "red colour" trademark for "periodical printed media on judicial subjects".

The granting decision was made by the Appeal Chamber of the Intellectual Property Department after a long discussion and numerous meetings on the issue of whether to grant protection to the red colour.

Upon careful deliberation, the Appeal Chamber determined that the "red colour" for which protection had been sought had gained distinctiveness through continuous active use by the applicant. The grounds of this decision were the following.

"Yuridicheskaya Practica" Publishing was founded in 1994, concentrating in the area of judicial printed media, and containing news in the field of law and justice - whether through analytical articles, interviews with lawyers and legal analysts, court decisions, judicial practice, etc.

In the graphic design of printed media published by the applicant, the red colour had been widely used. The abovementioned colour was also dominant in the electronic versions of the publication. Moreover, objective proof that readers had strong associations of the red colour with periodicals published by the applicant was also furnished by a survey of Ukrainian lawyers - members of the Ukrainian Bar Association - that predominantly associated the red colour with periodicals published by the applicant.

Accordingly, the Appeal Chamber concluded that the claimed red colour had gained distinctiveness in Ukraine and in consequence could be registered for periodical printed media on judicial subjects.

The interests of Publishing in the Appeal Chamber of the Intellectual Property Department were represented by attorneys of Konnov & Sozanovsky.

These amendments primarily address procedural requirements for competition applications; the procedure to be followed for their consideration; parties to the proceedings; and their rights.

In particular, only persons whose rights are directly and essentially infringed owing to violation of the referenced legislation may apply to the Antimonopoly Committee. In cases where the rights of an applicant are not infringed, the Antimonopoly Committee can commence its own investigation of the facts set forth in the application.

When filing the application to the Antimonopoly Committee, the applicant should state, inter alia, the decision sought from the Committee. If proof of the violation requires the need for market research, the applicants should set forth their view of the market, together with the position of business entities in the market.

If a party considers that an application to the Antimonopoly Committee can have adverse consequences for it, it can petition to the Committee to initiate proceedings, "…on the Committee's own initiative". It should be noted that in cases where ensuring the confidentiality of information on a party would work to impede proving a violation, the policy of restricted access information (this policy imposes a restriction on outsiders' access to such information and a requirement for its non-disclosure) is not applied to the application.

If the alleged violation does not materially affect the competitive environment of the market in question, the consideration of the applicant's application can be rejected outright.

For Reference: The Procedure of Consideration of Cases Concerning Violation of Legislation for the Protection of Economic Competition provides the full platform of procedural detail to be used on consideration of applications concerning any alleged competition violations. In particular, such violations include abuse of a monopoly position by business entities; anticompetitive concerted actions of business entities; violation of the established procedure of authorization of merger and acquisition transactions; use of other persons' trademarks, defamation of business entities, etc.

The Cabinet of Ministers of Ukraine for the first time adopted a Procedure for the selling of state-owned land with privatization targets on it in 2006. This normative act was taken up in accordance with Article 93 of the Law of Ukraine, "On State Budget for 2006".

The Procedure allows such lands to be sold at auctions. During the preparatory work, the borders of a land plot must be defined, and an expert monetary valuation made. This process also requires obtaining a technical passport of the land plot and land-use documentation (if required).

Land-use documentation and an expert monetary valuation of the land plot, which is the subject of an auction, must undergo state examination, held by the respective executive body in charge of land resources.

Selling of a land plot together with a privatization target on it at an auction must be carried out at a public meeting of an auction commission, which must include representatives of the body in charge of privatization, State committee on land resources, local self-government and those of the labor collective of a privatization target.

Only those legal entities and private persons who meet the following requirements may partake in an auction:

  • vendee of a privatization target in the view of the Law of Ukraine "On privatization" (article 8): nationals of Ukraine, foreigners, stateless persons, legal entities, registered in Ukraine with the exception of Ukrainian legal entities the state-owned share of which exceeds 25% and foreign legal entities;
  • persons, entitled to obtain land plots under the Land Code of Ukraine;
  • on payment of a registration fee, which is equal to a tax-free allowance (which on the date of publication of the following article amounts to 17 hryvnas);
  • on payment of a guarantee deposit, which amounts to 10% of a initial cost of the subject of an auction.

Pursuant to the Procedure, passing of title comes into effect on full payment of the subject of an auction.

The Verkhovna Rada (Ukrainian Parliament) enacted legislation on the governmental control of activity in the field of transfer of technology. This is the first attempt in Ukraine to regulate the order of governmental control of activity in the field of technology transfers by specific statutory enactment.

The law is aimed at providing for the effective use of scientific, technical and intellectual potential of Ukraine, and for the protection of property rights in domestic technologies on the territory of those states, where their use is planned or carried out.

In accordance with the legislation, the main managers of budgetary facilities can pass property rights on technology invented on government financing to the enterprises, establishments, or organizations using that particular technology.

The money received from such transfer of technologies, property rights to which belong to the state, is subject to inclusion in the special funds of the State budget of Ukraine on the accounts of main managers of budgetary facilities in accordance with Law "On the State budget of Ukraine".

In situations where the constituents of technologies are created partly due to the personal funds of enterprises, establishments, organizations and/or private persons, and partly - due to state facilities, property rights to these constituents are distributed according to the agreement on their invention.

The law sets requirements for agreements on technology transfers; order of payment of reward to the authors and persons; performing the transfer of technology; as well as setting forth the main features of crediting and taxation of this activity.

Pursuant to this legislation, there must be an agreement between an enterprise, establishment or organization, creating technology and/or carrying out its transfer, and the author of the technology concerned. This agreement stipulates property rights, terms of payment, size of fee for the transmission and use of property rights to technology.

The amount, terms and order of payment of reward to the authors of technologies, in the case of absence of agreement between them and persons carrying out the particular transfer, must be determined by collective agreements.