Юридична фірма CPR

	Законодавство
		Decrees

Regulation on Procedure of Registration of Goods Containing Intellectual Property Objects, and Their Transition Across the Ukrainian Customs' Territory

Cabinet of Ministers of Ukraine
Decree
N 412 from 28.04.2001

On Enactment of the Regulation on the procedure for the customs processing and transportation of goods that contain intellectual property objects

( with the ammendments according to the Decrees of the Cabinet of Ministers
N 1493 ( 2002-п ) dated 11.10.2002
N 1510 ( 2002-п ) dated 11.10.2002 )

Enacted
By the Decree of the Cabinet of Ministers
N 412 from 28.04.2001

General provisions

1. This Regulation has been adopted under the Customs Code of Ukraine and the national laws in the area of protection of intellectual property objects.
2. This Regulation applies to the goods containing the intellectual property objects that are imported or exported by the national or foreign persons of foreign economic relations, irrespectively of the form of property or types of the business activity, and shall be included in the registry of goods containing the intellectual property objects, maintained by the state customs service.
This Regulation does not apply to the goods containing the intellectual property objects, that are transitted through the territory of Ukraine, are imported to the Ukrainian territory or exported from it by the natural persons for the purpose of personal use and not for commercial purposes, as well as goods sent in international postal anmd express dispatching.
3. The national customs’ authorities exercise control over the transportation of goods containing the intellectual property objects if such goods are included on the relevant registry maintained by the state customs service.
4. For the registration of goods containing the intellectual property objects, the extension of the registration termin and the ammendments in the data included in the registry, the customs duties are charged in the amount as determined by the Cabinet of Ministers of Ukraine.
5. For the purpose of this Regulation the meaning of termins is as follows:
Goods containing the intellectual property objects (hereafter refered to as intellectual property objects), - copies of works of science, literature, arts including the computer software, databases, phonograms, goods marked with the labels stating their origin, other goods that can be registered by the state customs service.
rightowner – the owner of rights on the intellectual property object or person holding the right of exploitation of work as under the national laws.
the rightowners’ representative – person authorized by the rightowner to represent his or her interests;
counterfeit goods - intellectual property objects the transportation of which over the state borders of Ukraine results in the infringement of rights of the rightowners, protected by the national laws and international agreements ratified by the Verkhovna Rada.
the registry of intellectual property objects (hereafter refered to as the registry) – list of intellectual property objects compiled by the state custims service for the customs control, on the basis of applications filed by the rightowners and their representatives, and includes the information that enables the customs authorities to prevent the transportation of intellectual property objects with the infringement of intellectual property rights.
the customs clearance’ hold-up – the halt of customs clearing procedure pending till the date of the relevant court’s decision, or claims’ revocation by the rightowner or his representative.
Registration of intellectual property objects and the maintenance of register
6. For the purpose of prevention of intelectual property rights’ infringement in the course of import or export of intellectual property objects, the rightowner or his representative has the right to claim the control actions related to the transportation of relevant goods, to be carried out by the state customs service. For this purpose the rightowner or his or her representative fills in the application form (presented below), on the inclusion of goods in the state registry.
The application shall be supported by the following documents:
the extract from relevant state registry given by the authority that has issued the certificate of protection of the relevant intellectual property object confirming the validity of the certificate on the date of application;
detailed description of intellectual property object, that enables the identification of goods by the customs officers according to the EEA goods’ classification;
the sample or copy of intellectual property object or its photographic copy;
another information on the intellectual property object thatenables its identification;
information on countries- producers of counterfeit goods as wellas ways of counterfeit goods’ transportation;
garantee obligation on reimbursement of the storage , expertise and other expences of the customs authorities as well as reimbursement of the rightowners’ economic losses that occur in case if the infringements are not confirmed.
7. The state customs service shall inform the applicant on its decision within 30 days from the date of application.
In case of negative decision on the inclusion of the intellectual property object in the registry, the applicant shall be notified on the reason of the decline.
The state customs service may decline in inclusion of the intellectual property object in the registry in case of absence of the following:
documents as stated in the p/6 of this Regulation;
reasons for the protection of rights on the intellectual property object in Ukraine, as determined by the national laws;
characteristic features of goods that can be monitored by the customs officers in the course of identification of relevant intellectual property object by its transportation over the Ukrainian customs border.
8. The rightowner or his representative shall pay the registration fees as determined under the p. 4 of this Regulation, within 10 days upon the receiving the customs service notification about the positive decision on inclusion of the object in the registry. The copy of the payment receipt shall thus be sent to the customs authorities.
9. The rightowner or his representative shall inform the state customs services in any changes in data or information submitted for the registration of the intellectual property object, within 3 days.
10. Upon the recieving of the confirmation on payment of registration fee, and after the transfer of relevant sum to the servcice' account, the state customs service accomplishes the registration procedure of the intellectual property object, within 10 days, by means of inclusion of relevant data on the object and its rightowner, in the state customs service' computer database as well as by means of issuing the relevant certificate on intellectual property object's registration (the form of certificate can be found in the Annex 2). The certificate includes the data on the date of object's registration, the registration number as given in the registry, the termin of the registration.
11. Within 3 next days the information on the registration as well as data about the intellectual property object and its rightowner(s), is transmitted by means of electronic information sources of the customs service and/or fieldeger connection sources to all the customs authorities including the regionals.
The information on the registration of the intellectual property object as well as the data on its rightowner are included in the central state customs services' database.
12. Upon the rightowners' application or his representative, the registration stays valid for 6 months or 1 year. The registration termin begins from the date of registration of the intellectual property object as stated in the registration certificate.
The registration termin can be prolonged for 6 months or 1 year, on the ground of the written application, submitted by the rightowner or his representative, and under condition that the relevant fee is paid not later than 1 months before the certificate's expiry date.
13. If the application for the termin's prolongation written by the rightowner or his representative, is not received by the state customs services on time, or if the prolongation fee is not paid on time, the registration is considered to be over. The re-registration of the intellectual property object can than be processed under the general registration procedure as established under the p.p. 6-10 pf this Regulation.
14. In case of inclusion of the intellectual property object in the registry and during the termin of registration, the rightowner and/or his representative has the right to address any customs authority pleading the suspension of customs processing of the intellectual property object, in case of presence of any motivated grounds to consider that the transportation of such an object infringes the intellectual property rights of the righowner.
The written pleading shall include the following documents:
the detailed description of the intellectual property object that is imported/exported infringes the intellectual property rights of the rightowner, so that the identification of such an object with reference to the regisry' data, can be done by any customs officer (the sample of object or its photo shall be presented, if possible);
the information on the place of registration or business activity of the importer/exporter/beneficiary of intellectual property object;
the names of countries and companies that produce and/or distribute the intellectual property object;
the conclusions of the customs laboratory' expertize or other competent authority regarding the comformity of the intellectual property object with the registered one (if the sample of object is available);
other documants and infomation that can prove the facts of intellectual peorperty rights' infringement.
The copy of registration certificate of the intellectual property object, isuued by the state customs services, shall be enclosed to the pleading documents.
15. The rightowner or his representative is liable under the national laws for intentional submission of inveracious data and information stated in the p.p. 6 and 14 of this Regulation.
Control over the transportation of intellectual property objects across the borders of Ukraine
16. The senior officer of the customs authority, where the rightowner's or his representatives' pleading on the halt of the customs processing of the certain inmtellectual property object has been filed, if all the documents were submetted as under the p. 14 of this regulation, within 24 hours shall make the dicision on the sufficiency or insufficiency of the reasons for the halt of the customs processing.
17. In case if the decision of insufficiency of reason has been made, the customs authority shall send to the rightowner or his representative the written notification on the grounds of the refusal to halt the intellectual property objects' customs processing, within the 3 next days.
18. In case of the sufficiency of reasons the decision on the halt of the customs processing for the termin of 15 days shall be made, with the notification on such a decision of the state customs service by electronic means, and the written notification on such a decision of the rightowner or his representative by the principal officer of the relevant customs authority, within the next day.
19. Upon a receipt of the customs authority' notification about the halt of the customs processing of the intellectual property object for the termin of 15 days, the state customs service notifies all the other customs authorities within the next 3 days. Given that any objective reasons for the prolongation exist, the termin of halt can be prolonged, but no more than for 15 calendar days, according to the decision of the principal officer of the customs authority in the zone of halt the customs of processing.
The customs authority in the zone of halt the customs of processing of the analogous intellectual property object, on the ground of the state customs service notification, shall notify the state customs service, the rightowner or his representative, and the declarant, on such a halt, on the same day.
20. For the final decision on the infringement of the intellectual property rights, the rightowneror his representative shall arrive at the customs authority by the place of the halt of the customs' processing of relevant intellectual peoperty object, as soon as possible (taking into account the terms stated in the p. 19 of this Regulation).
21. With the aim of the proof of the facts of infringement, the customs authority can allow the rightowner or his representative to examine the suspended intellectual property object and, in case of necessity, to send its samples for further examination or expertize by the customs laboratory or other competent authority.
22. During the termin of the customs processing halt, the rightowner or his representative shall file the suit to the relevant court on the protection of his intellectual property rights under the national laws, or personally regulate the rights' infringement issues with the owner of the suspended object.
Within the stated termins the rightowner or his representative is obliged to provide to the customs authority the certified copy of the court's decision on the institution of court proceedings, or the written withdrawal of the pleading on halt of the customs processing of the intellectual property object.
23. If the certified copy of the court's decision on the institution of court proceedings is submitted by the righowner or his representative to the relevant customs authority where the halt of the customs processing occured, the relevant customs authority shall suspend such a customs processing until the court's decision is made.
24. The customs authority has the right to proceed the customs processing of the intellectual property object, the processing of which has been suspended, in the following circumstances:
a) in case if the proofs presented by the rightowner or his representative, are considered as insufficient. In such a case the customs authority sends the motivated notification about such a decision, to the rightowner or his representative;
b) in case if the rightowner or his representative files the pleading on the name of the customs authority principal officer, about withdrawal of his application on the ground of the indepent settlement of the problems of intellectual rights’ infringement, with the owner of intellectual property objects.
c) after the expiration of termin of hte halt of intellectual property object, and under the condition that no court’s decision on the beginning of the court litigation has been made, as it is stipulated in the provision 22 of this Regulation.
25. The customs authority has the right to suspend the customs processing of goods containing the intellectual property objects, on his own initiative, if there is the sufficient reason to suspect that the transportation of goods containing the intellectual property objects, infringes the intellectual property rights.
26. In case of halt of the customs processing of goods on the own initiative of the customs authority, the notification on such a decision (by mail, fax, electronic sources) shall be sent to the rightowner, the declarant and the state customs service, within the 24 hours.
The state customs service sends the notification on the halt of the customs processing of the intellectual property object, to all the customs authorities.
27. The rightowner or his representative shall instantly (taking into account the termins stated in the p. 19 of this Regulation) arrive at the customs authority by the place of the goods’ suspension, and act in accordance with the procedure established in the p.p. 21-23 of this Regulation.
28. The customs authority of the zone where the unlawfully transported over the Ukrainian borders optical information carriers were suspended, and the report on the infringement of the customs rules has been drawn up, shall send two samples of the optical carriers from each suspended package, to the nearest customs laboratory, within the 3 working days.
29. Within the month from the date of the arrival of samples, the customs laboratory shall carry out their expertize with the aim of determination of their producer. The expertize can be carried out by means of comparison of the suspended samples with the samples of carriers produced by the national optical carriers’ producers.
If it is proved that the suspended optical infomation carriers were produced by the ukrainian manufacturers, the customs laboratory sends the expertize conclusion to the state customs service as well as the prosecution of relevant oblast, by the place of the optical carriers’ suspension, for the purpose of the determination whether the infringement of intellectual property rights, occurs.
In case of the optical carriers’ manufacturer is not detected, or if it is proved that the manufatures is situated ouside of Ukraine, the customs laboratory shall therefore send the expertize conclusion to the state customs service, for the purpose of the possible notification of the relevant competent authorities.
30. The disputes that arise between the declarant and the state customs service, as well as between the rightowner and the state customs service, shall be solved under the procedure as stipulated under the national laws.
31. The intellectual property objects the customs processing of which has been suspended by the customs authorities according to this Regulation, shall be stored under the procedure esteblished by the Customs Code of Ukraine.

Annex 1

APPLICATION
On the inclusion of goods including the intellectual property objects, in the registry of the state customs service

     ME,_______________________________________________________________________
                       (first name, surname, initials)
     being the rightowner/rightowners’ representative(non-applicable shall be crossed)
on the ground of __________________________________________________, request
                  (name and details of the document)
the inclusion in the registry of the state customs service of the goods containing the intellectual property objects (hereafter refered to as the intellectual property objects), for the purpose of the customs control of the transporation of such goods over the Ukrainian customs borders.
With this regard I would like to inform the following details:
     1. General information on the rightowner
     1.1. Rightowners’ personal status:
     --- private individual (fill in the provision "а")
     ---
     --- body corporate (fill in the provision "b")
     ---
     а) informaiton on the rightowner - private individual:
First name, surname, initials _______________________________________________
_____________________________________________________________________________
pasport series ______________ N ______________________________________,issued
_____________________________________________________________________________,
                                 (issuing authority and the date of issue)
address ______________________________________________________________________
place of residence _____________________________________________________________
identification code ________________________________________________________
phone/fax # ________________________________________________________________
other information ______________________________________________________________
     b) informaiton on the rightowner - body corporate:
name (full and short as stated in the registration certificate)_____________________________________________________________________________

_____________________________________________________________________________
address_______________________________________________________________________
place of business activity _____________________________________________________________
bank details _________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
identification code (EDRPOY) __________________________________________________________
phone/fax # _________________________________________________________________
     1.2. Information on persons – authorized represenatives of the body corporate in case if the customs processing results in the determination of the counterfeit facts:
First name, surname, initials ________________________________________________
phone/fax # _________________________________________________________________
address _______________________________________________________________________
First name, surname, initials ________________________________________________
phone/fax # _________________________________________________________________
address _______________________________________________________________________
First name, surname, initials ________________________________________________
phone/fax # _________________________________________________________________
address _______________________________________________________________________

     2. General information on the applicant (shall be filled in by the rightowners representative, if he files the application)
     2.1.Status of Applicant:
     --- private individual (fill in the provision "а")

     --- body corporate (fill in the provision "b")
     ---
     а) informaiton on the rightowner - private individual:
First name, surname, initials _______________________________________________
_____________________________________________________________________________
pasport series ______________ N ______________________________________,issued
_____________________________________________________________________________,
                                 (issuing authority and the date of issue)
address ______________________________________________________________________
place of residence _____________________________________________________________
identification code ________________________________________________________
phone/fax # ________________________________________________________________
other information ______________________________________________________________
     b)informaiton on the rightowner - body corporate:
name (full and short as stated in the registration certificate) _______________________________________________________________________________

______________________________________________________________________________
address_______________________________________________________________________
place of business activity _____________________________________________________________
bank details _________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
identification code (EDRPOY) __________________________________________________________
phone/fax # _________________________________________________________________

     3. Documents proving the ownership of rights:
______________________________________________________________________________
             (name of the document, issuing authority, date of issuing)
______________________________________________________________________________
______________________________________________________________________________
Document’s term of validity_______________________________________________________
     4. Information on the intellectual property object:
name of the goods __________________________________________________________
economic code (УКТ ВЕД) _________________________________________________________
Characteristic features of the intellectual property object, as stated in the p. 7 of this Application.
     5. Registration Termin
     the registration is required for the termin of (to cross the non-applicable):
     --- 6 months
     ---
     --- 1 year
     ---
     6. Obligations
     6.1. I undertake the obligation to compensate all the storage expenses, the expertize expenses and other expenses that may occur in the course of protection of my intellectual property rigths/the intellectual property rigths of the rightowner whose representative I am, (cross the non-applicable), as well as economic losses of the owner of goods in case if any claims are filed against the state customs service.
     As a guarantee I enclose the warranty letter _____________________________
______________________________________________________________________________
     6.2. I undertake the obligation to inform the state customs service on any amendments or changes in data, stated in the p.p. 1-3 of this Application form, within 3 working days.
     6.3. I undertake the obligation to inform the state customs service on any changes that concern the characteristic features of the intellectual property object itself, and other information as stated in the p.7 of this Application form, not later than 3 working days in advance, before the changes are made.
                         ____________________________
                                   (signature)
     7. Characteristic features of the intellectual property object
     7.1. The manufacturer of the intellectual property object
______________________________________________________________________________
______________________________________________________________________________
     7.2. Name and details of the bodies corporate engaged in import/export of intellectual proeprty objects
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     7.3. Customs authorities that carry out the customs control and processing of intellectual property objects
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     7.4. Carriage of counterfeit goods (cross the non-applicable):


carriage by air;
shipping;
motor carriage;
carriage by rail.

     7.5. Exclusive ways of transportation of the intellectual property object
(the name of the shipper, posts of transportation over the customs borders of Ukraine)______________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     7.6. The countries of the goods’ delivery ______________________________________________________________________________
______________________________________________________________________________
     7.7. Characteristic features of the intellectual property objects (label, processing, packaging ect.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     7.8. Information оn the price of one unit of the intellectual proeprty object
______________________________________________________________________________
______________________________________________________________________________
     7.9. Other information that can be used by the customs authorities for an identification of the intellectual property object
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     8. Characteristic features of the counterfeit goods
     8.1. According to the information available to me, the counterfeit goods are being imported/exported by the following national companies: ______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     8.2. According to the information available to me, the counterfeit goods are being imported/exported by the following foreign companies: ______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     8.3. Customs authorities that supposingly can carry out the customs control and processing of counterfeit goods __________________________________
______________________________________________________________________________
______________________________________________________________________________
     8.4. Carriage of counterfeit goods (cross the non-applicable):

     carriage by air;
     shipping;
     motor carriage;
     carriage by rail.
     8.5. Possible ways of transportation of the counterfeit goods _______________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     8.6. Characteristic features of the counterfeit goods (label, processing, packaging ect.) _______________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     8.7. Information оn the price of one unit of counterfeit goods _______________
______________________________________________________________________________
______________________________________________________________________________
     8.8. Other information that can be used by the customs authorities
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
     9. Annexes:
     The application form shall include the following annexes(to cross the non-applicable):
     The copy of document(s) confirming the ownership of rights
The copy of document(s) confirming the powers to represent the interests of the rightowner;

     warranty on the compensation of damages;
     annexes to the p. 7 of the application form;
     annexes to the p. 8 of the application form;
optical carriers that relate to the intellectual property object (photos, prospects ect.);
     samples of the intellectual property objects;
     optical carriers that relate to the countefeit goods (photos, prospects ect.);
     samples of counterfeit goods;
     other documents:
______________________________________________________________________________
     I certify that all the data and information provided by me on the date of the submission of the application form, are true.
     I confirm that I am familiar with the provisions of the Regulation on the procedure of customs processing and transportation of goods that contain the intellectual property objects, over the customs borders of Ukraine.
     _______ ____________200__.                                ____________
                                                                  (signature)

Annex 2

CERTIFICATE
On the inclusion of goods containing the intellectual property object in the registry maintained by the state customs services
dated ____________________ 200__ .

Name of goods containing the intellectual property objects,
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
The rightowner _____________________________________________________
__________________________________________________________________
An extract from the relevant state registry concerning the intellectual property objects (issued by) ______________________________
__________________________________________________________________
          (issuing authority, date of issuing; registry name and registration #)
__________________________________________________________________
Registration termin ________________________________________________
Registration # in the state customs service’ registry____________________
     On any infringement of your intellectual property rights the nearest custims authority or hte state customs service, is to be informed.
        Deputy Chairman of the State Customs Service of Ukraine
               ___________ ____________________
                                  (signature)    (surname, initials)
                                                     P.S.