of December 15, 2008 No. 01-8/724
About some questions of appointment and conducting judicial examinations on the cases connected with protection of intellectual property rights
The agreement on trade aspects of intellectual property rights (THRIPS) which with the entry of Ukraine into the World organization of trade are from 16.05.2008 part of the national legal system of Ukraine, provides that procedures which concern protection of intellectual property rights shall not be groundless are complicated, the cost of their implementation shall not be high or be followed by considerable material costs, contain groundless temporary restrictions or unjustifiable delays (Article part two 41).
In connection with the specified instructions observance of regulations of the current legislation by economic courts concerning procedure for appointment and conducting judicial examinations is very important. Therefore in addition to stated in explanation of presidium of the Supreme Arbitration Court of Ukraine of 11.11.98 N 02-5/424 "About some questions of practice of purpose of judicial examination" (with subsequent changes and amendments) and in recommendations of presidium of the Supreme Economic Court of Ukraine of 29.03.2005 N 04-5/76 "About some questions of practice of purpose of judicial examinations in cases on the disputes connected with protection of intellectual property right" and also in information letters of the Supreme Economic Court of Ukraine of 27.11.2006 N 01-8/2651 "About some questions of purpose of judicial examinations" and of 04.06.2008 N 01-8/348 "About some questions connected with terms of conducting judicial examinations" we consider necessary to pay attention to the following.
The issue of purpose of judicial examination shall be resolved only after detailed studying of the facts of the case and arguments of the parties of rather valid need of such appointment. Taking into account the specific facts of the case the possibility of the decision is not excluded by economic court of questions which arise in consideration of the case, from the consumer's line item without purpose of judicial examination.
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