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Cablegate: Ukraine: Usg-Funded Ipr Enforcement Training

VZCZCXYZ0001
RR RUEHWEB

DE RUEHKV #1411/01 2041009
ZNR UUUUU ZZH
R 221009Z JUL 08
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC 6045
INFO RUEAWJA/DEPT OF JUSTICE WASHDC
RUCPDOC/USDOC WASHDC
RUEHMO/AMEMBASSY MOSCOW 0361
RUEHSF/AMEMBASSY SOFIA 0037

UNCLAS KYIV 001411

SIPDIS

STATE FOR EUR/UMB AND EB/TPP/IPE - JURBAN
STATE FOR INL - JVIGIL
STATE PLEASE PASS TO USTR FOR PBURKHEAD/JGROVES
USDOC FOR 4231/ITA/OEENIS/NISD - CLUCYCK
COMMERCE PLEASE PASS TO USPTO AND CLDP
SOFIA FOR DOJ - MLAMBERTI

E.O. 12958: DECL: N/A
TAGS: ETRD KIPR ECON UP
SUBJECT: UKRAINE: USG-FUNDED IPR ENFORCEMENT TRAINING
CONTINUES WORK WITH JUDGES

REFS: A) KYIV 456
B) KYIV 404
C) 2007 STATE 154669
D) 2007 KYIV 1417
E) 2007 STATE 55928

SENSITIVE BUT UNCLASSIFIED; NOT FOR INTERNET PUBLICATION.

1. Summary: Post, in cooperation with CLDP (Commerce), on
July 9-10 held an IPR enforcement workshop for Ukrainian
judges, the second in a series of events that are part of a
STATE/INL-funded, IPR training initiative. Seventeen
judges, mostly from southern Ukraine, as well as
representatives from Ukraine's IP office, Customs, and
police, attended the event. U.S., French, and local
experts provided a broad introduction to IP law and
facilitated discussion of problematic issues faced by
Ukrainian judges, such as calculating damages and
sentencing. End Summary.

Continuation of IPR Training Program
------------------------------------

2. Post held an IPR enforcement workshop for Ukrainian
judges July 9-10 in Odessa, Ukraine as part of our
intellectual property rights (IPR) training initiative
"Creating a Sustainable Ukrainian IPR Training Capability"
(ref D). This initiative is part of the State Department's
2007 IPR Enforcement Training Funds Program (ref E),
administered by the Bureau for International Narcotics and
Law Enforcement Affairs (INL), which has allocated USD
125,000 for Ukraine (ref C). To implement the training
initiative, Embassy Economic Section is working closely
with the Department of Commerce's Commercial Law
Development Program (CLDP), which is taking the lead in
organizing the workshops. This workshop was co-financed by
CLDP, with its regular budget funds, and by Post, using the
INL fund cite provided in ref C. Post will provide copies
of all funding documents to INL/RM.

Reaching Judiciary at Local Level
---------------------------------

3. Stephen Gardner, CLDP Chief Counsel, Volodymyr Zharov,
Deputy Chairman of Ukraine's State Department of
Intellectual Property (SDIP), and Econoff opened the
workshop. A total of 17 judges, mostly from southern
Ukraine, attended. Odessa, Ukraine's largest Black Sea
port, has a reputation as a center for the trade in illicit
goods, and IPR-infringing goods are no exception. Sergiy
Nikulesko, head of SDIP's regional IP inspectors, noted
that when he and his team attempted to step up raids on
local retailers a few days before the workshop, they met
with "unprecedented resistance." (Note: Econoff found a
plethora of stalls at the popular Privoz market, only
minutes from the workshop site, selling pirated DVDs for
roughly USD 5. Trademark infringing goods also appeared to
be in abundance, although were harder to positively
identify as fakes. End Note.)

4. Zharov emphasized the importance of specialized IPR
training for judges, saying that SDIP's goal was to help
create a corps of properly-trained judges who could form an
IP Chamber within various local courts. (Note: The High
Commercial Court maintains a specialized IP Chamber and has
a reputation for handing down better rulings than local
courts. End Note.) Judges Harry Leinenweber, from the
U.S. District Court for the Northern District of Illinois,
and Sylvie Mandel, from the Versailles Court of Appeals
(France), discussed how to handle IPR cases from a judge's
perspective. Karin Ferriter, from the U.S. Patent and
Trademark Office, and Matthew Lamberti, Department of
Justice Intellectual Property Law Enforcement Coordinator
for Eastern Europe, provided additional expertise from the
U.S. side. Representatives of SDIP, the Ministry of
Interior, and the Customs Service also participated.

IPR 101 for Judges
------------------

5. Presentations covered copyright, trademark, and patent
law, as well as key international IPR enforcement

provisions. There were lengthy discussions on how judges
should calculate damages in IPR cases, a tricky matter in
Ukrainian law (ref D), but an essential step in prosecuting
a case. Lamberti argued that a defendant's sentence (i.e.
jail term and/or fine) should generally be based on the
number of infringing copies times the retail price of the
infringed good, and that damages should be based on the
estimated actual loss to the victim. Some judges indicated
that Ukrainian law was unclear on how to calculate the
value of the infringement in a piracy case, and that that
judges should receive additional guidance on that issue.
The Ukrainian judges also asked for advice on using expert
testimony and how to handle contradictory rulings by courts
in different jurisdictions. (Note: IPR infringers often
use obscure courts in far-away jurisdictions, presumably by
paying bribes, to secure rulings against legitimate rights
holders. End Note.) In addition, a few judges expressed
confusion on what evidence should be required by courts
before ordering a search of suspicious premises and seizure
of infringing goods stored in such premises.

6. Sergiy Nikulesko, head of SDIP's regional IP inspectors,
complained that some judges continued to hand down lax
sentences to IPR infringers -- often the minimum fine of
UAH 170 (approximately USD 35) -- and argued that such
sentences did not provide any meaningful deterrent.
Nikulesko also complained that judges often demanded that
investigators provide a complete list of CDs and DVDs from
a seizure, and verify that each disc was in fact a pirated
copy. Judge Leinenweber and Lamberti recommended that
Ukrainian courts consider using sampling techniques to
limit this burden on investigators.

7. In addition, Nikulesko and a private sector speaker said
that judges too often ordered infringing goods to be
returned to the infringer, rather than destroyed.
Nikulesko complained that the legal provisions providing
for the destruction of IPR-infringing goods remain unclear
and cumbersome. In his concluding remarks, Zharov agreed
that destruction remains a serious issue requiring further
attention.

TAYLOR

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