Search

 

Cablegate: Ukraine: Ipr Enforcement Cooperation Group

VZCZCXRO2971
PP RUEHBI
DE RUEHKV #1450/01 1631331
ZNR UUUUU ZZH
P 121331Z JUN 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 2691
INFO RUEAWJA/DEPT OF JUSTICE WASHDC
RUCPDOC/USDOC WASHDC
RUEHMO/AMEMBASSY MOSCOW 0177
RUEHBI/AMCONSUL MUMBAI 0055

UNCLAS SECTION 01 OF 03 KYIV 001450

SIPDIS

SIPDIS

STATE PLEASE PASS TO USTR FOR MOLNAR/GROVES
USDOC FOR 4201/DOC/ITA/MAC/BISNIS
USDOC FOR 4231/ITA/OEENIS/NISD/CLUCYCK
MUMBAI FOR WKLEIN

E.O. 12958: DECL: N/A
TAGS: ETRD KIPR ECON UP
SUBJECT: UKRAINE: IPR ENFORCEMENT COOPERATION GROUP
DISCUSSES DESTRUCTION OF INFRINGING GOODS

REFS: A) KYIV 1338

B) KYIV 348
C) 2006 KYIV 4359
D) 2006 KIEV 2219
E) 2006 KIEV 881

1. Summary: GOU, Embassy, and industry representatives
discussed the destruction of IPR-infringing material at a
June 5 Enforcement Cooperation Group (ECG) meeting. GOU
reps reviewed recently-passed legislation that provides the
authority for destruction and said that implementation will
be a challenge. USG and UK experts advised on how best to
approach the issue, in particular describing how equipment
seized from illegal producers can be used to bolster law
enforcement agencies' capabilities. Industry reps
expressed concern that lack of government funding could
inhibit destruction and expressed their willingness to
cooperate with the GOU. A GOU-Industry partnership will
indeed be necessary to properly implement the new
legislation, and Post will continue to facilitate this kind
of dialogue. End Summary.

2. On June 5 Ukraine's State Department of Intellectual
Property (SDIP) and Econoffs conducted the fifth meeting of
the IPR Enforcement Cooperation Group (ECG), with
participation of numerous industry representatives. (Note:
Refs B-E describe previous ECG meetings. End Note.) The
meeting took place on the margins of a seminar devoted to
IPR enforcement (septel) and included U.S. and United
Kingdom experts in Kyiv for the seminar.

3. The following is a list of key participants:

GOU
---
Valentin Chebotaryov - Deputy Chairman, SDIP
Iryna Vasylenko - Head of Enforcement Division, SDIP
Sergiy Nikulesko - Head of IP Inspectors, SDIP
Tamara Davydenko - Head of Copyright Division, SDIP
Olena Shcherbakova - Head of European Integration and
Int'l Cooperation Division, SDIP

Industry
--------
Michael Buchan - Motion Picture Association (UK
Office)
Dominic Watson - DuPont Ukraine
Natalya Pleshkova - Danone Ukraine
Alexander Kotlyarevsky - IFPI
Ignat Berezhny - Ukrainian Association of the Music
Industry
Yulia Andrusiv - British American Tobacco Ukraine
Ilya Frolov - Unwind Technology
Alexander Pakharenko - IP Law Firm Pakharenko & Partners
Mikhail Aristov - Boehringer Ingelheim Pharma GmbH
Yuliya Kobuk - American Chamber of Commerce
Olga Sydorenko - European Business Association

USG and UK
----------
J.P. Schutte - Deputy Economic Counselor, U.S. Embassy
Todd Reves - Office of Enforcement, USPTO
Marina Lamm - Office of Enforcement, USPTO
Steve Mellin - Assistant U.S. Attorney, Eastern
District of Virginia
Gerald Reichard - Special Agent, FBI
Timothy Tymkovich - Judge, U.S. Court of Appeals for the
Tenth Circuit
Phil Lewis - Senior Policy Advisor, United Kingdom
Intellectual Property Office (UKIPO)
Pete Astley - Principal Trading Standards Officer,
Warrington Borough Council (UK)

GOU: Need to Implement New Destruction Law
------------------------------------------

4. As described in ref A, the Ukrainian Rada (parliament)
on May 31 passed a law amending the Civil and Criminal
Codes to allow for the destruction of counterfeit and
pirated goods, as well as the equipment used to produce
those goods. The ECG meeting focused exclusively on this
issue, and expert-level exchanges on the storage and
destruction of IPR-infringing goods continued throughout
the three-day workshop. SDIP officials at the ECG

KYIV 00001450 002 OF 003


described the amendment as a simple fix to provide clear
authority for the GOU to destroy all kinds of infringing
goods, not just optical disks. (Note: President Yushchenko
signed this measure into law on June 11. End Note.)

5. SDIP officials noted that the challenge would now be to
develop appropriate procedures to implement the law. They
identified the following as especially critical issues, and
asked for U.S. and UK insights:
-- Developing the technical capability to destroy
infringing goods (especially more dangerous items like
counterfeit pharmaceuticals and pesticides); and
-- Financing the storage and destruction (i.e. by the
government, infringing party, or right holder).

USG: Destroy Goods, Seize Equipment
-----------------------------------

6. U.S. prosecutor Steve Mellin encouraged the GOU to
approach infringing goods and the equipment used by the
illegal producers separately. U.S. reps noted that for the
infringing goods themselves, the preference is always to
destroy. Astley and Buchan described efforts in the UK to
destroy goods through a recycling process that is more
environmentally friendly.

7. According to Mellin and FBI special agent Reichard, the
USG preference is to seize rather than destroy equipment
used to produce infringing goods. The government could
sell any difficult-to-destroy equipment for which
destruction is not feasible, such as an actual
manufacturing plant. Mellin and Judge Tymkovich noted
that, in such cases, the government would have to use
follow-on monitoring and other legal tools to ensure that
the equipment was never again used to produce infringing
goods. Reichard and Lewis described how both U.S. and UK
law enforcement officials make use of legal provisions
allowing them to seize equipment -- such as cars,
computers, and photocopiers -- to use for official law
enforcement purposes. The FBI, said Reichard, often uses
this provision to provide equipment to under-funded local
agencies active in combating IPR crimes.

8. SDIP Chairman Chebotaryov expressed concern that such
measures could raise suspicions of government corruption in
Ukraine. U.S. officials responded that the seizure of
equipment for official purposes should proceed only on the
basis of a court order, with due process and full
transparency. An independent government body could decide
where the seized equipment would go.

Industry: Who's Going to Pay?
-----------------------------

9. IFPI rep Kotlyarevsky described destruction of
infringing goods as particularly important because it
strikes at the leadership of illegal production, rather
than just the street-level retailers. He also noted that,
without destruction, enforcement efforts in one country
often result in the equipment used to produce pirated material
simply moving to a neighboring country. Kotlyarevsky said
industry's greatest concern was who would incur the cost of
destruction. Lack of government funding would be a major
impediment to destruction, cautioned Kotlyarevsky, and he
asked if there was precedent for the infringer to pay.
(Note: Philip Morris Ukraine has been particularly vocal on
the need for the infringers to pay, but its representative
was unable to attend the ECG. End Note.) Mellin responded
that such precedent does exist in the U.S. system, but that
prosecutors instead usually simply seek forfeiture of
assets. Judge Tymkovich noted that the government could
request the court to assess specific damages against the
infringer to cover the costs of destruction.

Work with Industry!
-------------------

10. Buchan, from Britain's MPA, urged the GOU to partner
closely with industry when destroying infringing goods or
equipment. In the UK, rights holders had legal title to
infringing goods, so destruction required their
cooperation. Storage of infringing goods was often a major
challenge, and industry could help in providing storage
space. DuPont rep Watson noted that counterfeit pesticides

KYIV 00001450 003 OF 003


could be particularly difficult to destroy; DuPont was
interested in assisting the GOU at the technical level.
Deputy Econ Counselor noted that the USG had already
provided some technical assistance in this area and would
look at further opportunities to do so, perhaps in
partnership with industry reps and with EU colleagues.

Comment: Gov-Industry Cooperation a Two-Way Street
--------------------------------------------- -----

11. The dominant theme of the ECG discussion on
destruction, and indeed of the entire three-day workshop,
was that industry is an invaluable and indispensable asset
to government in enforcing IP rights. The GOU has
gradually become more comfortable in cooperating with
industry reps, in part encouraged by these ECG meetings.
As Deputy Econ Counselor reminded the ECG participants,
however, GOU-industry cooperation must be a two-way street.
The GOU will have its hands full in implementing the new
law allowing for destruction of all IPR-infringing goods
and equipment. Industry can help the GOU develop workable
implementing procedures. The European Business
Association's IPR Working Group is drafting a set of
recommendations for the government.

TAYLOR

© Scoop Media

 
 
 
World Headlines

 

New IPCC Report: ‘Unprecedented Changes’ Needed To Limit Global Warming

Limiting global warming to 1.5°C will require “far-reaching and unprecedented changes,” such as ditching coal for electricity to slash carbon emissions, says a special report that finds some of the actions needed are already under way, but the world must move faster… More>>

ALSO:

Jamal Khashoggi: UK, France, Germany Join Calls For Credible Investigation

Germany, the United Kingdom and France share the grave concern expressed by others including HRVP Mogherini and UNSG Guterres, and are treating this incident with the utmost seriousness. More>>

ALSO:

MSF Not Wanted: Nauru Government Shows Continued Callousness

The Nauruan Government’s decision to ask Doctors Without Borders to immediately leave shows continued callousness towards asylum seekers desperately seeking a safe place to call home, Green MP Golriz Ghahraman said today. More>>

ALSO:

Sulawesi Quake, Tsunami: Aid Response Begins

Oxfam and its local partners are standing by to deploy emergency staff and resources to the Indonesian island of Sulawesi, as an estimated 1.5 million people are thought to be affected by the massive earthquake and tsunami that hit on Friday. More>>

ALSO:

Decriminalising Same-Sex Relationships: UN Rights Chief Applauds Indian Decision

“This is a great day for India and for all those who believe in the universality of human rights," Bachelet said. "With this landmark decision, the Indian Supreme Court has taken a big step forward for freedom and equality...” More>>

ALSO:

 
 
 
 
 
 
  • Pacific.Scoop
  • Cafe Pacific
  • PMC