Filing a claim to the Commercial Court

Filing a claim to the Commercial Court

When to apply?

When both the offender and right holder are legal entities (including self-employed individuals).

What types of violations are covered?
  • Any person’s actions that violate the personal non-property rights and/or property rights of copyright holders and/or related rights defined in art. 50 of the Law of Ukraine “On Copyright and Related Rights;”
  • violation of copyright and/or related rights to publish, reproduce, import into the customs territory of Ukraine, export from the customs territory of Ukraine and distribute counterfeit copies of works (including computer programs and databases), phonograms, video grams, unauthorized disclosure of broadcasting organizations’ programs, camcording, card sharing, and also online piracy, that is, the commission of any actions that are recognized as infringements of copyright and/or related rights through the use of the internet;
  • plagiarism – the disclosure (publication), in whole or in part, of someone else’s work under the name of a person who is not the author of this work;
  • import into the customs territory of Ukraine without the permission of the person having copyright and/or related rights of copies of works (including computer programs and databases), phonograms, video grams, broadcasting programs;
  • actions that create a threat of infringement of copyright and/or related rights;
  • any actions that deliberately circumvent the technical means of protection of copyright and/or related rights, in particular, the production, distribution, import for the purpose of distribution and use of means for such circumvention;
  • forgery, alteration or deletion of information, particularly in electronic form, regarding the management of rights without the permission of the copyright and/or related rights owners, or the person who carries out such management;
  • distribution, import into the customs territory of Ukraine for the purpose of distribution, public disclosure of copyright and/or related rights objects, from which, without the permission of copyright and/or related rights owners, information on the management of rights has been deleted or altered, especially in electronic form.
What can be achieved?
  • Recognize and renew your rights, including prohibiting actions that infringe copyright and/or related rights or threaten to violate them;
  • renew the rights that have been violated and/or terminate actions that violate copyright and/or related rights, or threaten to violate them;
  • seek compensation for moral (non-property) damage;
  • indemnify for (pecuniary) damage, including loss of profit, or collect the income received by the offender as a result of violation of your copyright and/or related rights, or payment of compensation of 10 to 50 000 in minimum wages (instead of indemnification or collection of income);
  • stop actions in progress aimed at infringement of copyright and/or related rights, including suspension of customs procedures, if there is a suspicion that there may be passed in the customs territory of Ukraine or from its customs territory, counterfeit copies of works, phonograms, video grams, or any other means of bypassing the technical means of protection, in accordance with the procedures provided by the Customs Code of Ukraine;
  • take part in the inspection of the industrial premises, warehouses, technological processes and business operations related to the production of copies of works, phonograms and video grams, in which there are grounds for suspicion of violation or threat of infringement of copyright and/or related rights, established by the Cabinet of Ministers of Ukraine;
  • publish in the mass media the information on alleged infringements of copyright and/or related rights, together with court decisions on these violations;
  • obtain from the persons who violate the copyright and/or related rights of the plaintiff, information about third parties involved in the production and distribution of counterfeit copies of works and objects of related rights as well as the means of circumventing the technical means of protection and their distribution channels;
  • employ other legislative measures to protect copyright and related rights;
  • prohibit the publication of works, their performances or production, the issue of phonograms, video grams, their notifications, the cessation of their distribution, the seizure (confiscation) of counterfeit copies of works, phonograms, video grams or broadcast programs, and the equipment and materials intended for their production and reproduction;
  • impose on the offender a fine of 10% of the amount awarded by the court in favor of the plaintiff, which is paid to the state budget of Ukraine;
  • remove or confiscate all counterfeit copies of works, phonograms, video grams or broadcast programs that have been found to have been manufactured or distributed in violation of copyright and/or related rights as well as measures to circumvent the technical means of protection, including cliche, matrices, forms, originals, magnetic tapes, photographic negatives and other objects by which reproductions have been made of works, phonograms, video grams, broadcasting programs as well as the materials and equipment used for their reproduction, including the means to circumvent the technical means of protection;
  • confiscate the counterfeit copies of works (including computer programs and databases), phonograms, video grams, broadcast programs at the request of the person who is the subject of copyright and/or related rights and the rights which have been violated.
What should be done?
  • If an offense is detected, record the violation in a way that will be recognized in court (with the involvement of third parties with special expertise and experience);
  • identify the defendant;
  • collect the evidence;
  • prepare and submit a statement of claim to the Commercial Court, for which it is necessary to send a copy to the defendant(s) and pay the court fees with evidence, in particular, of sending payment of the judicial collection of the statement of claim;
  • note that the claim to the Commercial Court may not have to be submitted by a lawyer, but only a lawyer will be able to represent and protect the rights of the right holder during the process. Obligatory representation of a lawyer is in the Supreme Court and courts of cassation from 1 January 2017, in the courts of appeal, from 1 January 2018,and in the courts of first instance from 1 January 2019 (unless there is a law on exclusion from this);
  • personally and/or with the participation of a lawyer, take an active part in all stages of the trial.