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1 TWINNING PROJECT FICHE 1. Basic Information 1.1 Programme: ENPI Action Programme 2010 for Ukraine (CRIS Decision n 022315) 1.2 Twinning Number: UA/13/ENP/TR/30b 1.3 Title: Strengthening the Protection and Enforcement of Intellectual Property Rights in Ukraine 1.4 Sector: Internal Market 1.5 Beneficiary country: State Intellectual Property Service of Ukraine (SIPSU), Ukraine 2. Objectives 2.1 Overall Objective The overall objective of the project is to decrease a piracy level and create favorable conditions in line with the relevant EU acquis for improvement of the investment climate in Ukraine through increase the effectiveness of the state system of intellectual property rights protection and enforcement. 2.2 Project purpose The project purpose is to strengthen the administrative capacity and competencies of the State Intellectual Property Service of Ukraine (SIPSU) as well as to propose effective legal measures against counterfeiting and piracy and to ensure effective implementation of the enforcement legislation and sanctions for infringements of intellectual property rights 2.3 Contribution to the National Development Plan, PCA (Partnership and Co-operation Agreement) and ENP (European Neighbourhood Policy), EU- Ukraine Association Agenda. The necessity of strengthening intellectual property rights enforcement is reflected in the EU – Ukraine policy documents and an implementation of the twining project will contribute to the Partnership and Co-operation Agreement and European Neighbourhood Policy and the EU- Ukraine Association Agenda. According to the Agreement on Partnership and Cooperation between Ukraine and the European Union, Ukraine took the liability on improvement of intellectual property rights enforcement in order to ensure the level of enforcement that corresponds to the European standards. Negotiations on a new and enhanced agreement between the EU and Ukraine were launched in 2007. This agreement will succeed the PCA. The Association Agreement, including the Deep and Comprehensive Free Trade Area (DCFTA) will significantly deepen Ukraine’s

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TWINNING PROJECT FICHE

1. Basic Information

1.1 Programme: ENPI Action Programme 2010 for Ukraine (CRIS Decision n 022315)

1.2 Twinning Number: UA/13/ENP/TR/30b

1.3 Title: Strengthening the Protection and Enforcement of Intellectual Property Rights in Ukraine

1.4 Sector: Internal Market

1.5 Beneficiary country: State Intellectual Property Service of Ukraine (SIPSU), Ukraine

2. Objectives

2.1 Overall Objective

The overall objective of the project is to decrease a piracy level and create favorable conditions in line with the relevant EU acquis for improvement of the investment climate in Ukraine through increase the effectiveness of the state system of intellectual property rights protection and enforcement.

2.2 Project purpose

The project purpose is to strengthen the administrative capacity and competencies of the State Intellectual Property Service of Ukraine (SIPSU) as well as to propose effective legal measures against counterfeiting and piracy and to ensure effective implementation of the enforcement legislation and sanctions for infringements of intellectual property rights

2.3 Contribution to the National Development Plan, PCA (Partnership and Co-operation Agreement) and ENP (European Neighbourhood Policy), EU- Ukraine Association Agenda.

The necessity of strengthening intellectual property rights enforcement is reflected in the EU – Ukraine policy documents and an implementation of the twining project will contribute to the Partnership and Co-operation Agreement and European Neighbourhood Policy and the EU- Ukraine Association Agenda.

According to the Agreement on Partnership and Cooperation between Ukraine and the European Union, Ukraine took the liability on improvement of intellectual property rights enforcement in order to ensure the level of enforcement that corresponds to the European standards.

Negotiations on a new and enhanced agreement between the EU and Ukraine were launched in 2007. This agreement will succeed the PCA. The Association Agreement, including the Deep and Comprehensive Free Trade Area (DCFTA) will significantly deepen Ukraine’s

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political association and economic integration with the EU, relying on a strong degree of regulatory approximation as foreseen in the Eastern Partnership. In addition, negotiations on the establishment of a Deep and Comprehensive Free Trade Area (DCFTA) were launched after Ukraine became a member of the World Trade Organisation (WTO) in May 2008. The DCFTA will be an integral part of the Association Agreement, it includes substantial Ukraine's commitments on Intellectual Property related issues.

Signature and ratification of the EU-Ukraine Association Agreement will likely take some time before the full Agreement can enter into force. Consequently, a practical interim instrument was developed to replace the EU-Ukraine Action Plan of 2005. This instrument, the Association Agenda, is expected to prepare for and facilitate the entry into force of the Association Agreement. It was adopted on 23 November 2009 by the EU-Ukraine Cooperation Council. It sets out key priorities for reforms, which Ukraine should address in the coming years in order to fully benefit from the intensified co-operation and improved market-access foreseen in the new Association Agreement. The project will support the implementation of section 5 “Trade-related matters” of the EU-Ukraine Association Agenda, which envisages strengthening cooperation on the protection of the IPR by exchange of experience and organization of joint actions on the IPR issues as well as continue a dialogue on IPR issues in order to:

• properly implement standards embedded in the Enforcement Directive 2004/48/EC and the EC Council Regulation 1383/2003 concerning customs actions,

• take effective measures against counterfeiting and piracy and ensure effective implementation of the enforcement legislation and of sanctions for infringements of intellectual property rights;

• strengthen coherent and comprehensive enforcement capacity at public authorities level (administrative, judicial and operational authorities), in particular strengthen the number of State Inspectors at the SIPSU and increase the enforcement resources regarding internet piracy within the Ministry of Interior.

The project goals fully correspond to the Concept of the Development of the State System of Intellectual Property Protection for the years of 2009-2014 (attached in the annex to the fiche). The concept presents the strategy for further development and improvement of the state system of intellectual property rights protection

3. Description

3.1 Background and justification

In 1992 the State Patent Office of Ukraine was established by the Decree of the Cabinet of Ministers of Ukraine. In 2000 the State Department of Intellectual Property (SDIP) under the Ministry of Education and Science of Ukraine was created as the state governmental administration body of Ukraine responsible for the realization of the state policy in the sphere of intellectual property. In 2011 in the course of an administration reform and on a basis of the Presidential Decree the SDIP was replaced by the State Intellectual Property Service of Ukraine (SIPSU), which is at present a central body of executive power responsible for granting rights to intellectual property law objects, drafting legislation, international cooperation and providing information, products and services (including training) related to intellectual property issues. The number of employees of the State Intellectual Property Service of Ukraine is 64 (March 2013).

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The State Enterprise “Ukrainian Industrial Property Institute”, which is under the sphere of management of SIPSU, was determined as the examining body of Ukraine. The Ukrainian Industrial Property Institute carries out examination of applications for industrial property objects. The total number of employees is about 600 persons, about half of whom are examiners. In May 2008 Ukraine became a member of the World Trade Organization and was required to meet all obligations resulting from the provisions of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS). However not all requirements have been fully implemented yet. European Commission in its last Report of 2013 based on 2010 survey on the protection and enforcement of intellectual property rights in third countries1 put Ukraine in the list of third countries in which the state of IPR protection and enforcement gives rise to the greatest level of concern, and thus to enable the Commission to focus its activities and resources in this area accordingly. Report raised concern on piracy and counterfeiting as well as on the lack of adequate provisions in the Ukrainian legislation ensuring effective enforcement of IPR rights, in particular in the digital environment. Moreover, Ukraine was recommended by International Intellectual Property Alliance (IIPA) to be designated as a Priority Foreign Country (PFC) in its 2013 Special 301 Report on Copyright protection and Enforcement a country with very severe enforcement problems, as well as numerous longstanding legal deficiencies2. According to the Report the piracy rates and copyright protection in Ukraine have worsened over the past 2 years. The report also recognizes the following problems in the area of IPR implementation:

- growing internet piracy - the last few years have seen a rapid growth of illicit peer-to-peer hosting and illegal websites;

- operation of collecting societies; - persistent problems with the administration of the current hologram stickering system

which was adopted in 2000; - free and pay-for-download piracy of music and film; - high quality illegal camcords of films that are uploaded to top sites and distributed

across the Internet - hard copy piracy - widespread availability of illegal material in open-air markets; - criminal enforcement - the most significant shortcoming in the Ukraine enforcement

regime has been the absence of effective criminal prosecutions and deterrent sentencing which are necessary to combat digital and hardcopy piracy.

One of the main directions of the foreign policy of Ukraine is integration to the world and the European economic and cultural community. A creation of the most favorable legislative, organizational and economic conditions for acquiring, exercising and enforcing of intellectual property rights by legal and natural persons is a very important component of this process in Ukraine. First of all, it concerns an improvement of the national legislation in a sphere of intellectual property rights protections. The legislation of Ukraine is already broadly in line with the EU legislation both on industrial property and copyright and related rights but nevertheless some further amendments are needed and should be focused on the following:

− further approximation of the national legislation to the EU legislation and taking into account the evolution of IPR in the digital world;

1 http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/enforcement/ 2 http://www.iipa.com/rbc/2013/2013SPEC301UKRAINE.PDF

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− ensuring of a harmonization of the national legislative acts in the sphere of the intellectual property with a general Ukrainian legislation;

− consideration/implementation of the recent changes in the international law in the national legislation on intellectual property issues;

− joining new international agreements when reasonable. On December 3, 2010 the Verkhovna Rada (the Parliament) of Ukraine adopted in the first reading the Draft Law of Ukraine “On the Amendments to Several Legislative Acts on Intellectual Property Issues” (registration № 0903 of 12.12.12, previous registration № 7205). By this Draft Law the amendments will be introduced into the Civil Code of Ukraine, the Civil Procedural Code of Ukraine, the Law of Ukraine “On the Protection of Rights to Inventions and Utility Models”, the Law of Ukraine “On the Protection of Rights to Industrial Designs”, the Law of Ukraine “On the Protection of Rights to Marks for Goods and Services”, the Law of Ukraine “On the Protection of Rights to the Topographies of Integrated Circuits” and the Law of Ukraine “On the Protection of Rights to Designation of Goods Origin”. It is also of utter interest to get acquainted with the experience of the European countries on the legal regulation of issues in the sphere of copyright and related rights, in particular on the use of copyright and related rights objects in Internet. The Verkhovna Rada (the Parliament) of Ukraine in February 2011 adopted in the first reading the Draft Law of Ukraine “On the Amendments to Several Legislative Acts on Regulation of Copyright and Related Rights Issues” (registration № 0902 of 12.12.12., previous registration № 6523 dated of June 15, 2010). The adoption of this Draft Law will provide the possibility to bring the national legislation in line with the provisions of the EU legislation, to harmonize the national legislative acts that will promote effective regulations of relations in the sphere of copyright and related rights, improve relations in the sphere of collective management of copyright and related rights as well as ensure an efficient copyright and related rights enforcement. After adoption of the above mentioned Draft Laws, their enforcement shall also need a development of necessary normative legislative acts. In particular, the Draft Law provides that the procedure of regulation of rights to non-original databases protected by sui-generis law shall be regulated by separate Law. Therefore, after the adoption of the mentioned Draft Law № 0902 the separate Draft Law on the Protection of Rights to Non-Original Databases shall be developed. In order to coordinate the activities of the state bodies in the sphere of intellectual property and fighting against infringements the Ministry of Education and Science of Ukraine, the Ministry for Internal Affairs of Ukraine, the State Security Service of Ukraine, the State Tax Administration of Ukraine, the General Prosecutor’s Office of Ukraine, the Ministry of Culture and Arts of Ukraine, the State Committee of Ukraine on Regulatory Policy and Entrepreneurship and the State Custom Service of Ukraine approved by adoption of the joint Order the Program of Coordinated Activities of Law Machinery and Other Supervisory Bodies on Fighting Against Illegal Output and Turnover of Audio-, Video Products and Other Intellectual Property Objects” (Program). The Program established the main directions of cooperation between the above mentioned bodies. The Coordination Council on fighting against infringements in the sphere of intellectual property has been working since June 2003 with the purpose of providing continuous control over the Program implementation. In 2003 the working groups under the Council of Ministers of the Autonomous Republic of Crimea, regional (oblast’) state administrations as well as Kyiv and Sevastopol city state administrations were established. All these working groups included representatives of law-

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machinery and supervisory bodies (the Program). The main purpose of the working groups on the local level is to coordinate activities of the local law enforcement bodies and to provide the heads of regional (cities’) state administration with recommendations on improvement of IPRs enforcement and decreasing the level of piracy in the regions. The usual practice in the world IP system is a publication of patent information and providing access to information resources through Internet. The Patent Offices in majority of the European countries have already developed access to information servers and digital libraries. Taking it into account a creation and maintenance of digital patent library in Ukraine is a very actual task. The Ukrainian Industrial Property Institute, supervised by the SIPSU, has already launched the first stage of establishing of digital patent library. In the process of its development a lot questions raised that need to be addressed. At current stage the acquaintance with the experience of creation and maintenance of digital patent libraries in the leading Patent Offices would be of utter importance for the Ukrainian experts who are directly involved in implementation of this project in Ukraine and will be responsible for its functioning. To date, the level of piracy in Ukraine, especially in Internet, is still high. The law enforcement agencies do not have the possibility to get objective evidences on piracy level in different spheres of the use of copyright and related rights objects as the methodology for the estimation of piracy level is not available. The elaboration of such a methodology would make possible to increase the efficiency of fighting against piracy, to increase the volume of collected and paid remuneration (royalties) in favor of copyright and related rights subjects and to improve investment climate in the country. In view of this the experience of the EU countries on estimation of piracy level in copyright and related rights sphere is very important for the Beneficiary. Ukraine faces some challenges to establish the effective system of collective management of copyright and related rights. Among them are: a large number of collective management organizations (CMOs) and not adequate transparency of CMOs' activities. Moreover, there is no possibility to enforce economic rights of foreign authors because of a different CMO's regulations in the EU and Ukraine. There is also a need to resolve actual problematic issues related to non-payment of remuneration through CMOs in cases of:

• public use of copyright and related rights objects (on-air and cable television and radio organizations, cafes, bars, restaurants, night clubs);

• resale right (auctions, galleries, shows reselling fine arts works); • reproduction of copyright and related rights objects at home with private purposes

(payment of charges by producers and importers of blank carriers and recording equipment);

• reprographic reproduction of copyright and related rights objects. Establishment of the collective management system in accordance with the EU standards is supposed also to increase of the fees payment effectiveness in favour of the IP right holders. In January 2013, the State Intellectual Property Service of Ukraine (SIPSU) proposed a new set of copyright amendments, focusing on provisions pertaining to collective rights management. Unfortunately the draft law would create a standard for collecting society accreditation based on the volume of money gathered by a collecting society over the last two years rather than the internationally accepted standard, which is accreditation according to the volume of rights represented in the contemporary market. Ambassador of USA to Ukraine

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and EU Ambassador to Ukraine by the joint letter of 19 February 2013 addressed to the relevant Ukraine's National Authorities expressed concern against counterproductive measures proposed by the draft law. The next recognized problem of effective implementation and enforcement of intellectual property rights is a very low awareness not only in the enterprise sector but also in the administration units. Increasing number of granted titles of protection on intellectual property rights objects and intensification of right holders’ activity regarding enforcement of their rights lead to the increasing number of the court cases in this sphere. At the same time a huge workload in general courts and lack of judges with corresponding qualifications (especially on the regional level) cause the long lasting cases. Therefore, there is a prompt need to raise the general level of awareness of the Ukrainian judges within the field of IP. The Ukrainian Industrial Property Institute, which is under the supervision of the State Intellectual Property Service of Ukraine, is responsible for the examination of applications for industrial property objects. One of the main factors that influence on improvement and acceleration of examination procedure is the level of automation of applications workflow procedures and development of automated system of examination quality management. At present the effectiveness of the system in Ukraine is not satisfactory and needs to be improved. Additionally the Ukrainian examiners have a lack of experience of working with searching databases and databases of non-patent literature, drawing-up and interpreting international reports on search and preliminary conclusions.

3.2 Linked activities (other international and national initiatives):

In 2006 a regular EU-Ukraine bilateral IPR Dialogue was established. The objective of the dialogue is to identify and resolve the existing legislative and enforcement problems related to IPR protection.

The Dialogue coordinators are DG Trade and Ministry of Economic Development and Trade of Ukraine, involving State Intellectual Property Service of Ukraine, relevant enforcement authorities and certain right holders.

The two parties agree to hold one day meetings at expert level at least twice a year. The next IPR Dialog meeting is to take place in Kyiv on 24 April 2013.The former State Department of Intellectual Protection cooperated actively with international donors. Among them the United States Patent and Trademark Office (USPTO) is one of the most active partners. In particular, the representatives of the SDIP took part in several seminars organized by the USPTO Global Intellectual Property Academy on copyright and related rights issues, IPRs enforcement and patent procedures.

In June 2007 the state inspectors on IPRs issues of the SDIP took part in the Seminar on Criminal Enforcement of IPRs organized jointly by USPTO and UK Intellectual Property Office. On 30 March and 1 April, 2011 the SDIP in cooperation with USPTO organized the round table for examiners from the Ukrainian Industrial Property Institute (the examining body of Ukraine). The aim of the event was to get acquainted with USPTO best practices on examination of patent and trademark applications, quality management and examiners training.

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On the basis of the Cooperation Program between the SDIP and the European Patent Office (EPO) the examiners of the Ukrainian Industrial Property Institute on regular basis take part in the seminars, workshops, on-job trainings organized by the European Patent Academy of the EPO on examination of applications for industrial property objects, patent search and the use of several commercial databases. In 2008 the SDIP in cooperation with the EPO organized Forum for Judges. Almost over 30 participants learnt about the European practices of resolution of disputes related to patents and trademarks.

In 2002 the Agreement on Cooperation between the Cabinet of Ministers of Ukraine and the World Intellectual Property Organization was signed. According to the agreement the SDIP was designated on behalf of the Cabinet of Ministers of Ukraine as a coordinator of these cooperation activities. Within its mandate the SDIP (now SIPSU) in cooperation with WIPO annually organizes several events on IPRs issues, in particular International Conferences on “Actual Problematic Issues of Intellectual Property” (twice a year), WIPO-Ukraine Summer Schools on IPRs, regional seminars on Patent Cooperation Treaty, seminar on copyright protection in audiovisual sphere, study tours to WIPO Mediation and Arbitration Centre for the Ukrainian judges. In 2010 the Cooperation Program for 2010-2012 was signed between the Cabinet of Ministers of Ukraine and WIPO that was a platform for successful bilateral cooperation. The new Cooperation Program for the next two years is under development.

The State Department of IP organized also several events in cooperation with the Commercial Law Development Program of the US Department of Commerce, in particular Round Table on Legislation Improvement (September 2006), Seminar on Appeal Procedures (September 2006), Seminar on IPRs Enforcement (September 2007), Workshop on IPRs Enforcement (February 2008), Seminar on Identification of Counterfeited and Pirated Products (February 2011), Seminar on Identification of Counterfeited Medicines (May 2011).

It was also a beneficiary of the TACIS Project “Application of a foreign trade regime – Establishing a framework for the protection of intellectual property rights”. The project started in December 2003 and was successfully completed in June 2005. The project was aimed at providing assistance in achievement of adequate level of IPR protection in Ukraine, facilitating the respective governmental executive bodies in creating favorable environment for effective IPR protection and reduction of counterfeit and piracy activities, and thus to contribute to the meeting by Ukraine of the WTO TRIPS Agreement. Within the project the Coordination Committee for IPRs was created; all Ukrainian registers on intellectual property were summarized; the multilingual IP glossary was printed and disseminated; assistance with the transition from a state driven collective rights management body into several CMOs was provided; several training activities for representatives of law enforcement agencies were organized.

SDIP coordinated and benefited from the TAIEX workshop on enforcement of copyright and related rights: investigation and prosecution held on November 25-26, 2010, in Kyiv. The workshop was designated for the prosecutors from all regions of Ukraine and was focused on peculiarities of investigation of infringements in the sphere of copyright and related rights.

3.3 Results:

The results to be achieved by the project:

• Proposals to improve legislation of Ukraine in the sphere of enforcement legislation of intellectual property rights in order to be approximated to the EU legislation and taking into account the evolution of IPR in the digital world prepared

• Institutional capacity of the SIPSU enhanced

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• Professional skills of the stakeholders strengthened

3.4 Activities:

The Twinning will allow for the development of a close relation between State Intellectual Property Service of Ukraine (SIPSU) and EU Member State Partner3. The listed activities and the proposed means for achieving the activities are indicative and can be revised in the framework of the preparation of the contract between the twinned institutions. Component I: Approximation of Ukrainian legislation in the sphere of enforcement legislation of intellectual property rights to that of the EU The aims of this component are:

1) to carry out an analysis of the legislative environment in the area of enforcement legislation of intellectual property rights in Ukraine

2) and assisting the SIPSU in a preparation of proposals for amending current legislation and regulations in conformity with the EU acquis communautaire and taking into account the evolution of IPR in the digital world.

Taking into account the length of the process for the adoption of new legislation, special attention should be paid to the structuring of the legal framework related to the division of regulations between primary legislation (adopted by the Parliament) and secondary legislation (adopted by the Government).

Result 1: to propose effective legal measures against counterfeiting and piracy as well as to ensure effective implementation of the enforcement legislation and sanctions for infringements of intellectual property rights

Activities: 1.1. Reviewing selected relevant legislation in the sphere of enforcing IPR

focusing on to the conformity with the EU acquis communautaire, in particular the following legal acts are supposed to be reviewed :

•••• the Draft Law of Ukraine “On the Amendments to Several

Legislative Acts on Intellectual Property Issues” - registration № 0903 of 12.12.12, previous registration № 7205 dated of December 3, 2010;

•••• the Draft Law of Ukraine “On the Amendments to Several Legislative Acts on Regulation of Copyright and Related Rights Issues” - registration № 0902 of 12.12.12, previous registration № 6523 dated of June 15, 20104);

Upon the completion of the review, a report containing a comparative table on the conformity with the EU regulatory framework should be prepared. 3 Several MS, in case of a consortium 4 At the stage of the project fiche preparation these two key legal acts are still under the legislative process thus these laws are named as "draft laws";

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1.2. Carry out a gap analysis of the existing legislation in IPR sphere, together

with the SIPSU experts (and basing on the results of the Activity 1.1). All identified gaps between the Ukrainian and EU legal frameworks and assessed impact of legal approximation should be presented in the report summing up this activity.

1.3. Report on implementation of standards embedded in the Enforcement

Directive 2004/48/EC and the EC Council Regulation 1383/2003 and its successor concerning customs actions – the experts should also prepare a short report on overall implementing the standards embedded in the Enforcement Directive 2004/48/EC and the EC Council Regulation 1383/2003 and it's successor concerning customs actions in Ukraine.

1.4. Assisting SIPSU in a preparation of recommendations/ proposals on

amending/changing current legislation, regulations in conformity with the EU acquis communautaire and taking into account the evolution of IPR in the digital world. In particular:

1.4.1. to support the Beneficiary in drafting secondary legislation to

effectively implement the Law “On the Amendments to Several Legislative Acts on Intellectual Property Issues”

1.4.2. to support the Beneficiary in drafting secondary legislation to effectively implement the Law “On the Amendments to Several Legislative Acts on Regulation of Copyright and Related Rights Issues – and in particular to assist the beneficiary in developing a separate Draft Law on the Protection of Rights to Non-Original Databases including:

• recommendations on developing a separate Draft Law on the Protection of Rights to Non-Original Databases or to make amendments in the Copyright Law;

• assisting the Beneficiary in developing such Draft Law in accordance with EU norms.

For the purpose of this component implementation the Work Group will be established within the SIPSU. Component II: Enhancement of institutional capacity of the SIPSU 2.1 Coordination of IPR law enforcement agencies – the goal of this sub-component is to recommend a coherent and comprehensive model at public authorities' level (administrative, judicial and operational authorities) to strengthen coordination among IPR law enforcement agencies.

Result 2.1: preparation of recommendations on improvement/setting up of the coordination model of law enforcement institutions and assist the Beneficiary in implementing the model

Activities:

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2.1.1. Reviewing and analyzing of the present model coordinating activities of the IPR law enforcement agencies in Ukraine. The task will start from reviewing and analyzing the specific functions to be performed by each of the institutions involved in IPR enforcement and defining the institutional map of organizations involved in the fight against piracy and counterfeiting.

2.1.2. Presentation of the EU good practices of coherent and comprehensive coordination models at public authority level (administrative, judicial and operational authorities) drawing recommendations for Ukraine.

2.1.3. Organization of joint workshops and trainings to stimulate cooperation among the IPR law enforcement agencies.

2.1.4. Working out of recommendations. The recommendations should also propose a setting up of the national information exchange system among the IPR law enforcement institutions. 2.1.5. Study- tour on coordination issues.

For the purpose of this component implementation the Work Group will be established by the SIPSU.

2.2. Improvement of the launched digital patent library – the goal of this activity is to facilitate a free based access for all interested stakeholders to the official journals and IPR publications

Result 2.2: preparation of recommendations on the improvement of the digital patent library and assistance the SIPSU in their implementation

Activities:

2.2.1. Analysis of the existing system;

2.2.2. Preparation of proposals and recommendations on improvement of the existing system. For the purpose of this component implementation the Work Group will be established by the SIPSU.

2.3. Strengthening analytical capacity of the SIPSU – the goal of this activity is to increase the analytical capacity of the Beneficiary to monitor the piracy level in Ukraine and measure effectiveness of designed policies and actions

Result 2.3: preparation of recommendations to strengthen analytical capacity of the SIPSU/ development and effective implementation of the methodology to measure a piracy level in Ukraine.

Activities:

2.3.1. Presentation of the EU experience in functioning of the copyrights unit in institutions responsible for strengthening and enforcing IPR legislation.

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2.3.2. Preparation of recommendations to strengthen analytical capacity of the SIPSU.

2.3.3. Presentation of international experience in estimating of the piracy level.

2.3.4. Elaboration of the methodology, together with the SIPSU staff, for the estimation of the piracy level applicable for the project beneficiary.

2.3.5. Development of tools and instruments according to the developed methodology.

2.3.6. Delivery of 2 in-house, highly specialized trainings for the SIPSU analytical staff.

2.3.7. Preparation of the report, together with the SIPSU staff, presenting the estimations of the piracy level in Ukraine. For the purpose of this component implementation the Work Group will be established by the SIPSU.

2.4. Collective management - the goal of this activity is to increase the effectiveness of collaboration between the SIPSU and Ukrainian collective management organizations through strengthening professional skills of the specialists of the SIPSU.

Result 2.4: preparation of recommendations for the SIPSU and Ukrainian collective management organizations on development of the collective management system in Ukraine, in particular on a collection of remuneration for the use of audiovisual works, works of visual art and in the digital environment (Internet). Activities:

2.4.1. Presentation of the EU experience on functioning of collective management organizations in the sphere of collection of remuneration for the use of audiovisual works, works of visual art and in the digital environment (Internet).

2.4.2. Preparation of recommendations on effective collaboration between collective management organizations and the state authorities.

2.4.3. Presentation of international experience in organizing anti-piracy campaigns by collective management organizations and state authorities.

2.4.4. Development of tools and instruments that help to analyze the reports of collective management organizations, to manage public databases of right holders and objects of copyright and related rights, to measure the statistics of the use of protected objects.

For the purpose of this component implementation the Work Group will be established by the SIPSU.

Component III: Strengthening professional skills of the stakeholders

3.1. Strengthening professional skills of the state inspectors of the SIPSU - the goal of this activity is to increase the effectiveness of the state inspectors of the SIPSU in successful identifying pirate and counterfeited products.

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Result 3.1 increase of professional skills and competences of the state inspectors of the SIPSU by developing curricula and delivering series of highly specialised trainings for the state inspectors of the SIPSU. Activities:

3.1.1 Identification of training needs of the state inspectors of the SIPSU.

3.1.2. Developing of the training programme for state inspectors of the SIPSU basing on the EU good practices.

3.1.3. Delivery of trainings to the state inspectors of the SIPSU (at least 4 different trainings).

3.2. Strengthening professional skills of the examiners of industrial property objects - the goal of this activity is to accelerate an application examination procedure for industrial property objects and patents through increasing professional skills and competences of the examiners of industrial property objects.

Result 3.2: increase of professional skills and competences of the examiners of industrial property objects through preparing of the training programme for the examiners, training 5 trainers and delivery the training to at least 80 examiners. Activities:

3.2.1. Identification of training needs of the examiners.

3.2.2. Developing of the training programme basing on the EU practices for examiners of industrial property objects.

3.2.3. Preparation and delivery of the “train the trainer” training (including selection of candidates – up to 5).

3.2.4 Delivery of trainings to examiners (at least 4 trainings and 80 trained examiners).

3.2.5. Study visit on automation of applications workflow procedures and development of automated system of examination quality management (for 2 technical experts).

3.3. Strengthening professional skills of judges - the goal of this activity is to strengthen the capacity of the juridical system in the sphere of IPR through increasing awareness, professional skills and competences of the judges.

Resul 3.3: increase of professional skills and competences of the judges in the sphere of IPR through delivering training for 50 judges. Activities:

3.3.1. Identification of training needs of the judges.

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3.3.2. Developing of the training programmes based on the EU practices for the judges (at least two training programmes).

3.3.3. Delivery of trainings at least 4 (and 2 different) trainings for at least 30 judges from the economic courts and administrative courts.

3.3.4 Delivery of trainings at least 4 (and 2 different) trainings for at least 20 judges from the district courts of general jurisdiction.

3.3.5. Study tour to EU MS Court resolving IP disputes– 5 high ranked judges – duration of the visit - up to 3 days.

3.4 Strengthening professional skills of custom officials - the goal of this activity is to strengthen the capacity of the custom system in the sphere of IPR enforcement.

Result 3.4.: increase of professional skills and competences of custom officials in the sphere of IPR enforcement through delivering training for 90 persons. Activities:

3.4.1. Identification of training needs

3.4.2. Developing of the training programmes basing on the EU practices

3.4.3. Delivery of trainings for at least 90 custom officials/employees

3.5 Means/ Input from the MS Partner Administration:

3.5.1 Profile and tasks of the Project Leader

The MS Project Leader should be a high-ranking civil servant. The Project Leader will direct, co-ordinate, and control the overall thrust of the project. He/she will lead the activities of the project, ensure the achievements of the mandatory results, and be responsible for the implementation of the activities. The PL is expected to devote a minimum of 3 days per month to the project in his home administration, not in Ukraine. In addition he/she should coordinate, from the MS side, the Project Steering Committee (PSC), which will meet in Ukraine every three months. Tasks: The main tasks of the MS Project Leader are to ensure:

• The overall coordination of the project; • The achievement of mandatory results; • The organisation of working groups, if needed; • The organisation of the good communication and coordination with beneficiary and

stakeholders; PL qualifications and skills:

- University Master Degree Academic level in the relevant discipline or equivalent experience;

- Good organisational, communication and presentation skills;

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• Good English language skills, both spoken and written. Command of Russian/Ukrainian language would be a strong asset;

• Strong analytical skills; • Good inter-personal skills.

General professional experience:

• Long-term civil servant or equivalent from a MS administration dealing with IPR related issues with necessary experience relevant to the mission;

- • Experienced project manager, demonstrating good record in organisational leadership,

staff motivation, and communication. • Experienced in international co-operation issues would be an asset;

3.5.2 Profile and tasks of the RTA

The RTA, under the guidance of the PL, will lead the work of the team and will work on a daily basis with BC staff to implement the project, to support and co-ordinate the activities in the BC and to ensure continuity of implementation. The RTA is expected to ensure, together with the SIPSU counterparts, the achievement of the general and specific objectives, the expected results and the indicative performance indicators of Twinning. The RTA shall be a part of the Member State Parter public administration or mandated body. He/she will provide 18 months' input on site (including leave) and will be based in the premises of the SIPSU.

RTA tasks (list is not exhaustive): • Overall direction and supervision of the project implementation and coordination of all

activities according to the agreed work plan; • Management of the project administration; • Permanent contact with the national Project Director; • Coordinate and supervise Short-Term experts; • Advising on management and organisation of SIPSU; • Act as contact part and liaison with the PAO and the EU Delegation; • Prepare reports; • Ensure the quality of manuals and printed outputs; • Ensure effective and optimal utilization of available resources.

RTA Profile: Qualifications and skills: • University Master Degree Academic level in law/economics, or equivalent relevant to

the mission; • Excellent English language skills, both spoken and written. Command of

Russian/Ukrainian language would be a strong asset; • PC literacy; • Good interpersonal skills; • Excellent team-working skills; • Strong analytical skills

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General professional experience: • Civil servant or equivalent seconded to work by EU MS Administration; • Experienced project manager, demonstrating good record in organisational leadership,

staff motivation and communication; • Good Training skills. Specific professional experience: • At least 5 years experience in the field of IPR; • Experience in implementation of new methodological and organisational solutions; • Previous experience as project coordinator/project manager in projects of similar

importance and size would be an asset; The RTA may have one or two assistants (depending on the proposed project's implementation strategy). The assistant(s) will be selected before the start of the Twinning project and will be remunerated under the budget of the project. The profile of the RTA assistant(s) will be specified by the RTA and agreed with the Sector Manager from the EU Delegation following the provisions of the Common Twinning Manual (revision 2012).

3.5.3 Profile and tasks of the short-term experts

A team of Short-Term Experts (STE) from the MS will be required in each component. The number of STEs required in any particular component will depend on the nature of the detailed methodology being followed. The indications given below are purely indicative. It is emphasised that each member of the MS team will have an appropriate counterpart in the SIPSU, and the responsibility for attainment of the project results will be shared between them. The overall approach to the project places a high value on action-learning, and a key task of each and every member of the MS team will be to make their contribution to this capacity-building process. One STE with specialised knowledge will lead the implementation of one of the 3 specific project components. STEs will work in close co-operation with the SIPSU counterparts and staff in order to meet the specific objectives as set out. Detailed Terms of Reference for STEs will be elaborated by the selected MS in cooperation with the SIPSU. Qualifications and skills of STEs:

• University Degree or equivalent level in law/economics or equivalent relevant to the mission;

• Command of Russian/Ukrainian language would be a strong asset; • PC Computer literacy; • Good interpersonal skills; • Excellent team-working skills; • Strong analytical skills;

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General professional experience:

• Civil servant or equivalent seconded to work by EU MS Administration for at least 5 years;

• ; • Good communication skills; • Good consultancy and training skills and experience.

Specific professional experience defined for the STEs:

TYPE PROFILE

Component I: Approximation of Ukrainian legislation in the sphere of enforcement

legislation of intellectual property rights to that of the EU Legal experts in the sphere of implementing and enforcement of IPR legislation

At least 5 years of experience in drafting and analysing legislation IPR legislation Deep knowledge and practical experience of the Enforcement Directive 2004/48/EC and the EC Council Regulation 1383/2003 and its successor will be an asset

Component II: Enhancement of institutional capacity of the SIPSU Experts in coordination of IPR law enforcement agencies

At least 5 years of experience in activities related to coordination of IPR law enforcement agencies

Knowledge of the European coordination models of law enforcement institutions

Experts in digital patent library At least 3 years of experience in elaborating, coordinating or maintaining the digital patent library

Analytical experts At least 3 years of experience in activities related to monitoring and analyzing piracy level and measuring effectiveness of design of policies and actions

Experts in collective management

At least 5 years of experience in collaboration with collective management organizations or 5 years of experience in working for collective management organizations

Component III: Strengthening professional skills of the stakeholders

Experts in training At least 5 years of experience in preparing/coordinating

training activities in the area of IPR

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4. Institutional Framework

The development of the state system of intellectual property legal protection has started from the first day of independence of Ukraine. In 1992 the State Patent Office of Ukraine was established by the Decree of the Cabinet of Ministers of Ukraine and started performing functions of the central body of the state executive power in the sphere of legal protection of industrial property. At the same time the State Agency of Ukraine on Copyright and Related Rights as the state body of executive power governed by the Cabinet of Ministers of Ukraine was established.

In 2000, with the purpose to improve the efficiency of the mentioned bodies and to create a common state system of intellectual property legal protection the State Department of Intellectual Property (SDIP) under the Ministry of Education and Science of Ukraine was created as the state governmental administration body of Ukraine responsible for the realization of the state policy in the sphere of intellectual. SDIP has efficiently combined functions related to legal protection of industrial property and copyright and related rights objects. In particular, SDIP was responsible for:

- realization of a common economic, financial, scientific, technical, investment social policy in the sphere of intellectual property;

- drafting proposals on improvement of the state system of intellectual property protection;

- management of the property of enterprises and organization which are under the sphere of its management;

- ensuring constant control/monitoring over legislation process;

- drafting proposals on improvement of legislation in the sphere of intellectual property;

- ensuring proper functioning of the system of examination of applications for intellectual property objects;

- improvement of the system of registration, reporting and state statistics in the sphere of intellectual property;

- state registration and maintenance of the state registers of intellectual property objects;

- granting titles of protection for intellectual property objects;

- registration of agreements on transfer of rights to intellectual property objects and license agreements;

- consideration of requests and appeals on granting titles of protection as well as other appeals of natural and legal persons on intellectual property issues;

- coordination of activities on information support, ensuring acquisition of the national fund of patent documentation;

- international cooperation in the sphere of intellectual property;

- training of specialists and public officials on intellectual property issues.

At that moment the branch state system of intellectual property legal protection was created in Ukraine. At that time 3 state enterprises were operating under the supervision of SDIP:

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o State Enterprise “Ukrainian Industrial Property Institute”, examining body of Ukraine

The main functions of the Ukrainian Industrial Property Institute are:

receiving applications for granting titles of protection to industrial property objects, examination of applications for industrial property objects with a view of their correspondence to conditions for granting legal protection, state registration of industrial property objects and changes of their legal status, official publication of the relevant data;

drafting proposals on the improvement of legislation in the sphere of industrial property protection;

fulfillment of international obligations of Ukraine in the sphere of industrial property protection, participation in drafting international agreements of Ukraine on industrial property protection issues;

- organization of training for specialists on industrial property protection issues;

- state registration of agreements on transfer of property right to industrial property objects that are protected in Ukraine as well as of agreements on granting permission (license agreements) for their use;

- creation, actualization and maintenance of patent information base, necessary for examination procedures, as well as of reference and search tools;

- providing natural and legal persons with the information on industrial property objects;

- formation of the funds of the national patent documentation;

- participation in court cases related to industrial property objects.

The Ukrainian Industrial Property Institute has its branch, which was established in May 2001 - “Ukrainian Centre of Innovatics and Patent Information Services”. The main aim of Centre’s activity is a support to inventive and innovative activities. The Centre provides the following services: searches for information on inventions, utility models, industrial designs, marks for goods and services; holds patent researches on detection of infringements of rights of the owners of effective titles of protection; estimates the value of intellectual property objects; translates patent documents, etc.

o State Enterprise “Ukrainian Agency on Copyright and Related Rights”

The State Enterprise “Ukrainian Agency on Copyright and Related Rights” was established in 2000 as a successor in title of the State Agency of Ukraine on Copyright and Related Rights. It was created with the purpose of collective management of economic rights of copyright and related rights subjects in the sphere:

- dramatic rights;

- music rights (public performance and mechanical reproduction);

- literary rights, including scientific articles, monographs, translations);

- rights to sculpture works, graphics works, painting works, photographic works;

- audiovisual and cinematographic rights.

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The functions of the Ukrainian Agency on Copyright and Related Rights are:

- filling out materials of the state registration;

- registration of rightsholders and objects of copyright protection;

- conclusion with the users of license agreements for the use of intellectual property objects (dramatic, music, literary, visual (sculpture, graphics, painting, photography) and audiovisual works;

- collection, distribution and payment of author’s remunerations;

- setting with the authors from other countries on the basis of agreements with foreign authors’ societies on mutual representation of interests;

- accounting of the users of copyright and related rights;

- legal protection of author’s rights;

- activities on the prevention of copyright and related rights infringements;

o State Enterprise “Intelzahyst”

The State Enterprise “Intelzahyst” was established in 2002 with the purpose of improvement the process of issuance of control stamps for marking exemplars of audiovisual works and phonograms and promotion of enforcement of intellectual property rights. After the relevant amendments were made in the legislation of Ukraine in 2003 “Intelzahyst” also issues control stamps for marking exemplars of videograms, computer programs and databases.

The main functions of “Intelzahyst” are:

- maintenance of a Single Register of recipients of control stamps for marking exemplars of audiovisual works, phonograms, videograms, computer programs and databases;

- issuance of control stamps for marking exemplars of audiovisual works, phonograms, videograms, computer programs and databases.

As one of the functions of the SDIP was to ensure training and re-training of specialists on intellectual property issues, the State Institute of Intellectual Property was operating under the sphere of management of the SDIP. In 2010 it was transformed to the Institute of Intellectual Property of the Odessa National Law Academy in the City of Kyiv. It is a specialized higher educational establishment that provides for higher education in the sphere of intellectual property, training of evaluators of intellectual property objects, increasing qualification of specialists on intellectual property issues.

In 2011 in the course of an administration reformation the SDIP was replaced by the State Intellectual Property Service of Ukraine, which was created by the Decree of the President of Ukraine as a central body of executive power responsible for granting rights to intellectual property law objects, drafting legislation, international cooperation and providing information, products and services (including training) related to intellectual property.

The State Intellectual Property Service of Ukraine as the main beneficiary institution of this project will have a crucial role in the coordination of all institutions involved in implementation of the project.

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Dr. Mykola Kovinya, Chairman, State Intellectual Property Service of Ukraine, will be responsible for implementation of the project.

The State Intellectual Property Service of Ukraine will be responsible for the provision of the necessary resources, office space, and equipment to the Resident Twinning Adviser and other short-term experts.

The office space for the Resident Twinning Adviser shall be located at the premises of the SIPSU:

Urytskogo Street, 45, 03680, Ukraine

The conference-hall for seminars, workshops and trainings for 80 persons with all necessary equipment for interpretation and presentations is located at the premises of the Ukrainian Industrial Property Institute:

Glazunova Street 1, Kyiv-42, 01601, Ukraine

Efficient protection and enforcement of IP in Ukraine requires a coordinated efforts from all IP active stakeholders in the government and judicial administrations. Therefore the following stakeholders will be involved in a number of Twinning activities:

Ministry of Internal Affairs of Ukraine;

Ministry of Revenues and Duties of Ukraine;

Ministry of Justice of Ukraine;

Ministry of Economic Development and Trade of Ukraine;

State Court Administration of Ukraine

5. Budget

The maximum estimated budget allocated for this Twinning project is 1 500 000 EUR

6. Implementation Arrangements

6.1 Implementing Agency responsible for tendering, contracting and accounting

The Implementing Agency responsible for tendering, contracting and accounting is the European Commission represented by the Delegation of the European Union to Ukraine. The person in charge of this project at the Delegation of the European Union to Ukraine is: Vira Rybak Sector Manager Education, Science, Information Society European Union Delegation to Ukraine 101 Volodymyrska str., 01033, Kyiv, Ukraine

tel. +380 44 390 80 10 ext.1905 fax +380 44 390 80 15 [email protected] http://eeas.europa.eu/delegations/ukraine

The Programme Administration Office (PAO) under the Main Department of the Civil Service of Ukraine is an administration responsible for coordination of the preparation of

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Twinning projects and support for their implementation, provision of advisory and methodological support to public authorities in preparation and implementation of Twinning projects. The person in charge at PAO in Ukraine is: Mr. Vyacheslav Tolkovanov Director of Twinning Programme Administration Office, Head of the National Agency of Ukraine on Civil Service, 15, Prorizna str., Kyiv, 01601, Ukraine Tel: +380 (44) 2792926 Fax: +380 (44) 2785191 E-mail: [email protected] Website address: www.twinning.com.ua PAO Project Coordinator: Iryna Luchynska Head of Twinning Projects Coordination Sector15, Prorizna str., Kyiv, 01601, Ukraine Tel.: +380 (44) 279 29 45 Fax: +380 (44) 278 36 44 E-mail: [email protected]

6.2 Main counterpart in the BC, including contact person and contact details. Also include RTA

Beneficiary Country Project Leader

The beneficiary of the project is the State Intellectual Property Service of Ukraine. The BC Project Leader is

Dr Mykola Kovinya BC Project Leader Chairman of the State Intellectual Property Service of Ukraine 45, Uryts'koho Str., Kiev 35, COS, 03680, Ukraine Tel: +380 (44) 4940606 Fax: +380 (44) 4940667 E-mail: [email protected]

The Ukrainian Project Leader (PL) will act as the counterpart of the Member State PL. In close cooperation with him, the Ukrainian PL ensures the overall steering and co-ordination of the project, the operational dialogue and the backing at political level. The PL's seniority will ensure his ability to mobilize the necessary staff in support of the efficient implementation of the project. He will also coordinate the Project Steering Committee from the Ukrainian side

RTA Counterpart

Ms Iryna Matsiuk BC RTA Counterpart Head European Integration and International Cooperation Division State Intellectual Property Service of Ukraine 45, Uryts'koho Str., Kiev 35, COS, 03680, Ukraine Tel: +380 (44) 4983705

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Fax: +380 (44) 4940669 E-mail: [email protected] Contact persons Mr. Oleksiy Shanchuk Chief Expert, European Integration and International Cooperation Division State Intellectual Property Service of Ukraine 45, Uryts'koho Str., Kiev 35, COS, 03680, Ukraine Tel: +380 (44) 4983705 Fax: +380 (44) 4940669 E-mail: [email protected] Ms. Oksana Shpytal Chief Expert, European Integration and International Cooperation Division State Intellectual Property Service of Ukraine 45, Uryts'koho Str., Kiev 35, COS, 03680, Ukraine Tel: +380 (44) 4983705 Fax: +380 (44) 4940669 E-mail: [email protected]

The RTA Counterpart will work with the RTA on a daily basis to ensure proper coordination and implementation of all the activities of the project and achieve an efficient transfer of knowledge. She will be responsible, together with the RTA, for finalising the reports to be submitted to the PLs for the Project Steering Committee.

6.3 Contracts

Only one Twinning contract is foreseen for this project. A new Financial Regulation applicable to the general budget of the European Union entered into force on 1st January 20135. This implies several changes to the Twinning contract templates. An updated version of the Twinning Manual and of its Annexes, incorporating these changes, is in preparation and shall be published soon on EuropeAid website6. The Twinning contract that shall be signed as a result of the present procedure shall follow the templates of the updated Twinning Manual and Annexes.

5 Financial Regulation: Regulation (EC, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:298:0001:0096:EN:PDF Rules of Application: Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:362:FULL:EN:PDF 6 Link to DEVCO twinning page: http://ec.europa.eu/europeaid/where/neighbourhood/overview/twinning_en.htm

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7. Implementation Schedule (indicative)

7.1 Launching of the call for proposals – April 2013

7.2 Start of project activities – January 2014

7.3 Project completion – September 2015

7.4 The legal duration of the project is 21 months. The period includes the activities implementation period (18 months), plus three months for start up and completion activities.

8. Sustainability

The achievements of the Twinning Standard Project (Mandatory Results) will be sustainable. They will be maintained as a permanent asset to/of the Beneficiary Administration. The dissemination of project results and institutionalising obtained knowledge will be integrated into all levels of the project. Effective mechanisms are put in place by the BI to disseminate and consolidate the results of the project.

The sustainability issues will be further elaborated in the course of the project as a joint responsibility of the MS partner and BC institution. Besides, in the final report twinning partners will include specific recommendations for safeguarding the achievement of mandatory results in the beneficiary administration.

9. Crosscutting issues

The proposed project will comply with EU equal opportunity policies. Equal treatment of men and women in project implementation at all levels will be one of the most important principles in project management and implementation. Great attention will be given to having equal participation within the personnel that will be trained as well. The beneficiaries are employers of equal opportunity. Appropriate professional qualifications and experience will be the main decisive factors in personnel recruitment and evaluation. Both women and men have identical prospects.

Environment: n/a

10. Conditionality and sequencing

The following contributions expected from the beneficiary institution are regarded as important preconditions of the successful implementation of the project:

• The Twinning project receives high level political and professional support by the leaders of the SIPSU;

• Strong involvement/commitment of the SIPSU staff at all levels; • Assigning/employing the necessary personnel to activities connected with the project; • Ensuring the BI is assigning an operational PSC to monitor that all components of the

Twinning project are executed within the time schedule of implementation; • Ensuring coordination between institutions connected with the project; • Ensuring access to the all necessary information and documents in accordance with

legislation in force; • Supply of office accommodation, equipped with computer, telephone, internet access,

printer to MS in-country staff and visiting experts;

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• Providing suitable venues and equipment for training sessions and seminars that will held under the project.

List of Acronyms, Abbreviations and Special Terms BC Beneficiary Country BLA Bilateral Agreement CMO Collective management organizations DCFTA Deep and Comprehensive Free Trade Area EU European Union EC European Commission ENP European Neighbourhood Policy EPO European Patent Office EU European Union IIPA International Intellectual Property Alliance IP Intellectual Property IPR Intellectual Property Rights MS Member State PAO Twinning Programme Administration Office PCA Partnership and Co-operation Agreement PL Project Leader PSC Project Steering Committee RTA Resident Twinning Adviser SDIP State Department of Intellectual Property SIPSU State Intellectual Property Service of Ukraine TACIS EU Technical Assistance Programme to the Commonwealth of Independent

States TAIEX EU Technical Assistance and Information Exchange Programme TRIPS Trade Related Aspects of Intellectual Property Rights Agreement USPTO United States Patent and Trademark Office WIPO World Intellectual Property Organization WTO World Trade Organisation

ANNEXES TO PROJECT FICHE

1. Logical framework matrix

2. Concept of the Development of the State System of Intellectual Property Rights Protection of Ukraine for 2009-2014

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Annex 1 Logic matrix

Title: Strengthening the Protection and Enforcement of Intellectual Property Rights in Ukraine

Programme: ENPI Action Programme 2009 for Ukraine

Country: Ukraine

Total budget: EURO 1,5 million

Intervention logic Objectively verifiable indicators Sources of Verification Assumptions

Overall objective: The overall objective of the project is to decrease a piracy level and create favourable conditions in line with the EU relevant acquis to improve the investment climate in Ukraine through increase the effectiveness of the state system of intellectual property rights protection and enforcement

Piracy level in Ukraine Quality of the investment climate in Ukraine

Reports of external monitoring EU – Ukraine International reports assessing the quality of investment climate in Ukraine taking into account IPR related issues (World Bank, IMF, OECD) Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs) IIPA reports

Project purpose:

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The project purpose is to strengthen the administrative capacity and competencies of the State Intellectual Property Service of Ukraine (SIPSU) as well as to propose effective legal measures against counterfeiting and piracy and to ensure effective implementation of the enforcement legislation and sanctions for infringements of intellectual property rights

Effectiveness of the state system of intellectual property rights protection and enforcement a) efficiency in the area of fighting against intellectual property rights infringement increased b) number of cases of IPRs infringement processed by law-enforcement bodies c) fastened resolution of IP disputes by the courts e) Improvement and acceleration of application examination procedure for industrial property objects f) collective management system improved - increased number of fees collected by CMOs g) more deterrent penalties imposed by courts h) increased number of granted titles of protection in Ukraine Quality of the legal environment regulating the effective enforcement and protection of intellectual property rights

Reports of external monitoring EU – Ukraine International reports assessing the quality of the intellectual protection system in Ukraine (IIPA) Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs)

The Ukrainian government and stakeholders are committed to introduce the European principles for protection of intellectual property in Ukraine The SIPSU shall retain independence and impartiality. A proper coordination between national and regional authorities in the area of IPR will be ensured

Intervention logic Objectively verifiable indicators Sources of Verification Assumptions

Results

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Component I: Approximation of Ukrainian legislation in the sphere of enforcement legislation of intellectual property rights to that of the EU

Activity 1: Approximation of Ukrainian legislation in the sphere of enforcement legislation of intellectual property rights to that of the EU Result 1: effective legal measures against counterfeiting and piracy are proposed and submitted to the Government

1. report on the conformity with the EU regulatory framework 2. gap analysis of the existing legislation in IPR sphere 3. report on implementation of standards embedded in the Enforcement Directive 2004/48/EC and the EC Council Regulation 1383/2003 and its successor concerning customs actions 4. recommendations/ proposals on amending/changing current legislation, regulations in conformity with the EU acquis communautaire and taking into account the evolution of IPR in the digital world developed and submitted to the Government

Reports of external monitoring EU – Ukraine International reports assessing the quality of the intellectual protection system in Ukraine (IIPA) Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs) Reports of Project experts Project Quarterly and Final Reports Project monitoring reports

Sufficient political support from high ranking officials in the sector to introduce all relevant changes. Beneficiary and MS Partners will be committed to successfully implement the Project

Component II: Enhancing Institutional Capacity of SIPSU

Activity 2: Coordination of IPR law enforcement agencies Result 2.1.: recommendations on improvement/setting up of coordination model of law enforcement institutions are proposed and the Beneficiary is assisted in implementing the model

1. recommendations on improvement/setting up of coordination model of law enforcement institutions 2. effective coordination model of law enforcement institutions is implemented

Reports of external monitoring EU – Ukraine International reports assessing the quality of the intellectual protection system in Ukraine (IIPA) Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs) Reports of Project experts Project Quarterly and Final Reports Project monitoring reports

Sufficient political support from high ranking officials in the sector to introduce all relevant changes. Beneficiary and the Project will be committed to successfully implement the Project

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Activity 2.2: Improvement of the launched digital patent library Result 3: recommendations on the improvement of the digital patent library developed and assistance the SIPSU in their implementation provided

proposals and recommendations on improvement of the existing system of the digital patent library

Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs) Reports of Project experts Project Quarterly and Final Reports Project monitoring reports

Beneficiary and the Project will be committed to successfully implement the Project

Activity 2.3.: Strengthening analytical capacity of the SIPSU Result 2.3.1.: recommendations to strengthen analytical capacity of the SIPSU are prepared Result 2.3.2. methodology to measure a piracy level in Ukraine is developed and implemented

1. recommendations to strengthen analytical capacity of the SIPSU 2. preparation and implementation of the methodology for an estimation of the piracy level 3. report presenting the estimations of the piracy level in Ukraine

Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs) Reports of Project experts Project Quarterly and Final Reports Project monitoring reports

Beneficiary and the Project will be committed to successfully implement the Project

Activity 2.4: Collective management Result 2.4.: recommendations for the SIPSU and Ukrainian collective management organizations on development of the collective management system in Ukraine are prepared and implemented

1. recommendations on effective collaboration between collective management organizations and the state authorities 2. implementation of tools and instruments that help to analyze the reports of collective management organizations

Reports of the Beneficiary Institution (statistics of law-enforcement agencies, judiciary units, SIPSU, CMOs) Reports of Project experts Project Quarterly and Final Reports Project monitoring reports

Beneficiary and the Project will be committed to successfully implement the Project

Component III: Strengthening professional skills of the stakeholders

Activity 3.1.: Strengthening professional skills of the state inspectors of the SIPSU Result 3.1: professional skills and competences of the state inspectors of the SIPSU increased

1. Identification of training needs 2. preparation of the training programmes for state inspectors of the SIPSU 3. delivery of 4 different trainings

Reports of Project experts Project Quarterly and Final Reports Project monitoring reports Training materials

Beneficiary and the Project will be committed to successfully implement the Project

Activity 3.2.: Strengthening professional skills of the examiners of industrial property objects Result 3.2: professional skills and competences of

1. identification of training needs of the examiners 2. developing of the training programme

Reports of Project experts Project Quarterly and Final Reports Project monitoring reports

Beneficiary and the Project will be committed to successfully implement the Project

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the examiners of industrial property objects increased

basing on the EU practices for examiners of industrial property objects 3. preparation and delivery of the “train the trainer” training (including selection of candidates – up to 5) 4. Delivery of trainings to the examiners (at least 4 trainings and 80 trained examiners) 5. Study visit on automation of applications workflow procedures and development of automated system of examination quality management

Training materials

Activity 3.3.: Strengthening professional skills of judges Result 3.3. professional skills and competences of the judges increased

1. Identification of training needs of the judges. 2. Developing of the training programmes basing on the EU practices for the judges (at least two training programmes) 3. Delivery of trainings at least 4 (and 2 different) trainings for at least 30 judges from the district economic courts and administrative courts 4. Delivery of trainings at least 4 (and 2 different) trainings for at least 20 judges from district courts of general jurisdiction 5. Study tour to EU MS Court resolving IP disputes

Reports of Project experts Project monitoring reports Training materials Project Quarterly and Final Reports

Beneficiary and the Project will be committed to successfully implement the Project

Activity 3.4. Strengthening professional skills of custom officials Result 3.4.: increase of professional skills and competences of custom officials in the sphere of IPR enforcement

1. Identification of training needs 2. Developing of the training programmes basing on the EU practices 3. Delivery of trainings

Reports of Project experts Project monitoring reports Training materials Project Quarterly and Final Reports

Beneficiary and the Project will be committed to successfully implement the Project

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Annex 2

Unofficial translation of SIPSU

Concept of the Development of the State System of Intellectual Property Rights Protection

of Ukraine for 2009-2014

(approved by the decision of the Board of State Department of Intellectual Property, protocol N 11 of March 11, 2009) 1. Aim of the Conception The conception is being approved with the aim to determine the ways of further development and improvement of the state system of intellectual property rights protection. The priorities of the system are ensuring of intellectual property rights acquiring and enforcement at the level, corresponding to international norms and standards, and integration to the common trade-economic space of Ukraine and the European Union. 2. Development of the state system of intellectual property rights protection For the years of independence an effective state system of intellectual property protection has been created in Ukraine, which ensures implementation of the state policy in this sphere. In particular, the relevant legislation has been adopted, which in general complies with international norms and standards, the corresponding infrastructure has been developed, the mechanisms of legislative norms enforcement have been implemented. For several last years the level of intellectual property rights enforcement has considerably increased, coordination of law-enforcement and supervisory authorities has been established in order to prevent piracy in the sphere of intellectual property, the patent-information support system has been created, the national system of training, re-training and improvement of skill of specialists in the sphere of intellectual property has been established, up-to-date methods of examining the applications for granting the titles of protection for industrial property objects have been introduced. Every year the number of applications for intellectual property objects increases. On the average about 35 000 applications (including 15% from foreign applicants) are being received per year and more than 25 000 titles of protection are being granted. Considerable reduction of the terms of examining the applications for inventions, industrial designs and trademarks has become a significant achievement. A lot of positive results have been achieved in the sphere of copyright and related rights. About 27 000 registrations of authors’ rights have been exercised; TV and radio channels monitoring has been established; both governmental and private control over the use of copyright and related rights objects has been improved. Starting from the year of 2002 the inventory of computer programs used by the state bodies of executive power has been carried out on the yearly basis and the measures on their legalization

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are being taken. As a result of these activities the level of the use of unlicensed software in the state bodies of executive power reduced up to 50%. According to the estimation of the International Federation of Phonographic Industry (IFPI) the level of piracy in Ukraine, in particular in the music sphere, decreased from 85% to 65%. Exclusion of Ukraine from the “Priority Watch List” under “Special 301” became a significant achievement that promoted Ukraine’s joining to the World Trade Organization. 3. Perspective tasks, at solving of which the Conception aims One of the main directions of the foreign policy of Ukraine is integration to the world and European economic and cultural community. Creation of the most favorable legislative, organizational and economic conditions for acquiring, exercising and enforcement of intellectual property rights by legal and natural persons is a very important component of the mentioned process in Ukraine. First of all, it concerns the improvement of the national legislation in the sphere of intellectual property. The amendments to the current legislation on intellectual property issues shall be focused on the following:

− adaptation of the national legislation to the EU legislation; − bringing the legislation on intellectual property issues into compliance with the norms of

the Civil Code of Ukraine; − improvement of the legislative base related to examination of applications for industrial

property objects; − strengthening of legislative protection of intellectual property rights; − ensuring of harmonization of the national legislative acts in the sphere of intellectual

property and their harmonization with the general Ukrainian legislation; − consideration of the recent changes in the international law in the national special

legislation on intellectual property issues; − improvement of the legislative mechanisms for economic stimulation of creative

activities; − joining new international agreements when reasonable.

The necessity of strengthening intellectual property rights enforcement is caused by the following factors. According to the Agreement on Partnership and Cooperation between Ukraine and the European Union our country took the liability on improvement of intellectual property rights enforcement in order to ensure the level of enforcement that corresponds to the European standards. In the year of 2007 the negotiation process concerning the new agreement between Ukraine and the European Union has been launched which requires the strengthening of intellectual property rights enforcement. Furthermore, it is envisaged that the future Free Trade Agreement between Ukraine and EU will include the separate part “Intellectual Property” which will determine the basic principals of intellectual property legal protection. Finally, our country is obliged to ensure intellectual property rights enforcement according to the norms and standards of the World Trade Organization which Ukraine joined in May 2008. Yearly increasing amount of granted titles of protection on intellectual property rights objects, intensification of rightholders’ activity regarding enforcement of their rights lead to the increasing of the number of the court cases in this sphere. At the same time a huge workload in

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general courts, lack of judges with corresponding qualifications cause the long lasting cases. In view of the abovementioned, introduction of the alternative dispute resolution in the sphere of intellectual property, particularly mediation, and research concerning the establishment of the specialized patent court in Ukraine become the urgent challenges. The practice of the national law enforcement revealed problems connected with the formation of the civilized intellectual property objects market, among others in the sphere of copyright and related rights. Nowadays, unfortunately, the illegal use of copyright and related rights objects is widely spread, this leads to the tax base decrease, negative international image of Ukraine and lowering of its investment attraction as well as decline in copyright based industries. The abovementioned issues are not easy to address due to many reasons which should be eliminated, in particular: high profitability of the “piracy” business; lack of control from law enforcement and supervisory authorities; inadequately weak responsibility envisaged by the legislation for illegal use of copyright and related rights objects; low legal culture of the majority of the society who encourage piracy by purchasing cheap non-licensed products. The issue of management by economic rights to intellectual property objects created with the involvement of the budgetary costs, including those relating to the national defense sphere, remains unsolved. This leads to the restriction of the governmental influence on the effective introduction of these objects into civil turnout. Taking into consideration the private nature of intellectual property rights this issue is rather complex and needs resolving at legislative level. Activity connected with the creation of intellectual property rights objects, obtaining the protection for them, enforcement and protection of these rights needs an effective patent informational system taking into account the international experience, WIPO recommendations and world mainstreams in forming and using the informational resources (including commercial databases) which are available in Internet. Considering the modern tendencies of intellectual property rights protection at the international level, increasing number of the applications for industrial property rights protection and the need to accelerate granting the rights to these objects, the urgent challenge is introducing the system of electronic document exchange, particularly an electronic filing system in the examination office. The problem of training of the personnel able to manage effectively intellectual property rights and providing with the professional assistance on obtaining, exercising and enforcement of these rights is a challenge of today. The progress of integration of the national system of training, retraining and improvement of skill of the personnel in the sphere of intellectual property to the European educational space with the consideration of Bologna Declaration requirements is rather slow. In the context of international cooperation an intensification of cooperation with the World Intellectual Property Organization shall be necessary. In view of change of the leadership of this organization for the next 7 years it would be important to open a dialogue with WIPO at a new level and to present an authoritative position on development and realization of the policy of this influenced organization. The directions of cooperation intensification may be a more active use of educational programs of WIPO Academy and involvement of representatives of Ukraine to the work of WIPO Secretariat. In the framework of the European integration of Ukraine it would be important to take a political decision on expediency of joining of Ukraine to the European Patent Convention and of Ukraine’s membership in the European Patent Office.

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An extremely important event for our country was a victory in the contest on the right of hosting the final stage of the European Football Championship 2012. The arrangement of the championship requires a holding of the complex of activities on ensuring legal protection of UEFA intellectual property rights. 4. Ways of fulfillment of tasks of the state system of intellectual property rights legal protection The existing problems in the sphere of intellectual property shall be solved by holding the complex of activities in the following directions:

1. Development of legislation in the sphere of intellectual property: - continuation of adaptation of the national legislation to the legislation of the European

Union; - bringing of the legislation on intellectual property issues into compliance with the Civil

Code of Ukraine; - ensuring of liberalization, simplification and speeding-up of the procedures of obtaining

of rights to intellectual property objects and ensuring of maximum comfort for applicants;

- ensuring of maximum formalization of the procedures on examination of applications for industrial property objects and of all legal relations with the persons using the services on obtaining, protection and enforcement of rights to intellectual property objects;

- consideration of the necessity to ensure the activities of the establishments of the state system of intellectual property legal protection and intellectual property law subjects in modern conditions of informational society as well as of the necessity to use information, computer and telecommunication technologies in the process of improvement of legislation on intellectual property issues;

- improvement of effectiveness and accessibility of legal and administrative mechanisms of intellectual property rights enforcement;

- legislative improvement of intellectual property rights enforcement, in particular strengthening of responsibility for copyright and related rights infringements;

- maximum consideration of international legislation amendments in special laws of Ukraine in the sphere of intellectual property with ensuring of protection of the national interests of Ukraine;

- in case of advisability - an adoption of the laws of Ukraine on joining new international treaties and agreements, in particular European Patent Convention, Lisbon Agreement for the Protection of Appellations of Origin and their International Registration;

- determination of adopted mechanisms of legal protection of new intellectual property law objects, in particular genetic resources, traditional knowledge and folklore;

- improvement of legal regulation of economic aspects of intellectual property, in particular of a system of collection of fees for the activities connected with the protection of rights to intellectual property objects, improvement of legal mechanisms of economic stimulation of creativity.

2. Improvement of enforcement mechanisms in the sphere of intellectual property: - strengthening of the state control and improvement of coordination of activities of law-

enforcement agencies on fighting against intellectual property rights infringements; - ensuring of representation of the Ministry of Education and Science of Ukraine and/or

establishments of the state system of intellectual property legal protection in all courts at

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the territory of Ukraine when the Ministry or the mentioned establishments are litigating as a party in the court process;

- initiating of establishment of a specialized Patent Court (Court on Intellectual Property Issues) with the purpose of resolving disputes in the sphere of intellectual property;

- promotion of introduction of alternative ways of disputes resolution (in particular mediation);

- reduction of terms and improvement of quality of consideration of legal and natural persons’ appeals incoming to the establishments of the state system of intellectual property legal protection;

- accretion of power of the Board of Appeal of the State Department of Intellectual Property, ensuring of transparency of the decisions adopted by the Board of Appeal, ensuring of possibility of third parties to oppose the decisions of the State Department of Intellectual Property.

3. Improvement of activities in the sphere of copyright and related rights: - promotion of legal business in the sphere of copyright and related rights with the purpose

of market unshadowing; - intensification of cooperation and establishment of business partnership between

copyright and related rights subjects, state bodies and non-governmental organizations; - taking measures on improvement of system of collective management of economic rights

of copyright and related rights’ subjects as well as on improvement of collective management societies’ activities.

4. Improvement of examination of applications for industrial property objects: - obtaining of the status of international searching authority and of the centre of

preliminary examination of international patent applications by the Ukrainian Industrial Property Institute – examination body of Ukraine;

- introduction of electronic records on examination of applications for industrial property objects and improvement of technology of examination of applications for industrial property objects on the basis of automated systems introduction;

- introduction of a system of filing of applications via Internet in electronic form and reduction of number of application on paper to a minimum amount;

- reduction of terms of examination of applications for industrial property objects with consideration of conventional priority terms under the Paris Convention for the Protection of Industrial Property;

- improvement of control over applications examination quality. 5. Provision of patent-information services in the sphere of intellectual property and

ensuring of broad public access to information related to obtaining of rights to intellectual property law objects:

- constant and broad use of modern information and telecommunication technologies of

access to and exchange of information, introduction of modern methods and forms of information processing;

- ensuring of electronic document flow within all establishments of the state system of legal protection of intellectual property and between these establishments;

- updating of the procedure of national patent documentation funds formation; - further development of accumulation system and of searching mechanism of information

examination fund;

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- development of a single integrated reference-searching system for ensuring of unified access to diverse information sources that are necessary for examination of applications for marks for goods and services;

- creation of a system of recognition and searching of images and its integration to Automated Systems “Marks for Goods and Services” and “Industrial Designs”, introduction and development of portal solutions for a search in numerous information sources;

- further extension of nomenclature and of access of users to patent-information resources; - development of regional information policy through creation of conditions and providing

the possibilities for access to patent-information resources in the regions of Ukraine. 6. Training of specialists on intellectual property issues, dissemination of knowledge,

formation of high level of culture and education in the sphere of intellectual property in the society:

- formation of legal culture on intellectual property issues in the society with the use of

modern telecommunication technologies; - holding of public information actions on explanation of negative consequences of illegal

use of intellectual property law objects with the involvement of rightsholders; - updating of the forms and methods on training, retraining and improvement of skill of

Ukraine’s population of different social categories and age groups, patent attorneys, representatives of the state bodies, local governments, leadership of enterprises, establishments and organizations engaging in the sphere of intellectual property, technologies transfer and innovation activities with the consideration of requirements of Bologna Convention;

- creation of conditions for training of scientific brainpower in the sphere of intellectual property;

- development of international cooperation in the sphere of education on intellectual property issues by establishment of international educational scientific centre and carrying out educational activities connected with implementation of international master programs on training of specialists in the sphere of intellectual property, technologies transfer and innovation activities;

- improvement of scientific and methodological base; - training of new population categories on intellectual property issues, first of all of school

youth; - creation of conditions for preparation and edition of new scientific works, books,

including textbooks on intellectual property issues; - improvement of legislation on the activities of patent attorneys, in particular by

strengthening of public control over their activities, promotion of constant improvement of skill of patent attorneys, strengthening of the state influence on the quality of their services on obtaining, execution and enforcement of intellectual property rights;

- development of international cooperation, in particular intensification of cooperation with the WIPO Academy.

7. Participation of Ukraine in the implementation of international policy with the purpose to

enhance the international image of the state and influence of Ukraine on international processes in the sphere of intellectual property by:

- making the participation in the administrative and organizational activity of WIPO,

program and budget policy of this Organization;

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- defending the national interests within the participation in the Assemblies of WIPO, Standing Committees and Working Groups, implementation and launching of joint programs aimed at the creation of favorable conditions for small and medium enterprises;

- carrying out of surveys of international law norms with the purpose to define problematic issues and effective ways of their solution;

- analyzing of norms of international treaties with the purpose to specify the expediency of accession to them;

- carrying out of surveys to specify the expediency of Ukraine’s membership in the European Patent Office with the purpose to learn advantages and disadvantages of the accession to this Organization;

- implementing the Program of Cooperation Activities for 2008-2010 between the State Department of Intellectual Property and the European Patent Office;

- defending the interests of Ukraine on mutual protection of geographical indications in the framework of negotiation procedure with the EU on the creation of free trade area taking into account the needs of national producers;

- taking a package of measures on the legal protection of intellectual property of UEFA in connection with the holding of final part of the football championship Europe-2012 in Ukraine; in particular, taking an active part in the Coordination Council on the enforcement of intellectual property rights of UEFA under the Cabinet of Ministries of Ukraine and improvement of the activity of acting group of experts on the issues of intellectual property rights of UEFA created under the State Department of Intellectual Property; providing with urgent and effective examination of applications connected with intellectual property of UEFA in order to make the state registration of rights within 6 months from the day of applications filing and urgent consideration of oppositions against registration of applications that infringe rights of UEFA.