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07KYIV1452, UKRAINE: WORKSHOP ENCOURAGES JUDGES, PROSECUTORS,

June 13, 2007

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Reference ID Created Released Classification Origin
07KYIV1452 2007-06-13 06:22 2011-08-30 01:44 UNCLASSIFIED Embassy Kyiv

VZCZCXRO3584
RR RUEHBI
DE RUEHKV #1452/01 1640622
ZNR UUUUU ZZH
R 130622Z JUN 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC 2697
INFO RUEAWJA/DEPT OF JUSTICE WASHDC
RUCPDOC/USDOC WASHDC
RHMCSUU/FBI WASHINGTON DC
RUEHMO/AMEMBASSY MOSCOW 0180
RUEHLO/AMEMBASSY LONDON 0042
RUEHBI/AMCONSUL MUMBAI 0058

UNCLAS SECTION 01 OF 03 KYIV 001452 
 
SIPDIS 
 
SIPDIS 
 
STATE PLEASE PASS TO USTR FOR MOLNAR/GROVES 
USDOC PLEASE PASS TO USPTO 
USDOC FOR 4231/ITA/OEENIS/NISD/CLUCYCK 
MUMBAI FOR WKLEIN 
 
E.O. 12958: DECL: N/A 
TAGS: ETRD KIPR ECON UP
SUBJECT: UKRAINE: WORKSHOP ENCOURAGES JUDGES, PROSECUTORS, 
POLICE TO STEP UP IPR ENFORCEMENT 
 
REFS: A) KYIV 1450 
      B) KYIV 1417 
      C) KYIV 449 
 
1. Summary: Post, in coordination with U.S., UK, and 
Ukrainian institutions, held an IPR enforcement workshop in 
Kyiv June 5-7.  Ukrainian judges, prosecutors, police, and 
IP inspectors participated in the workshop, which focused 
on court proceedings for IPR-related cases.  Discussions 
revealed several problem areas for Ukraine's enforcement 
bodies, and U.S. and British experts passed on best 
practices.  The workshop bolstered our IPR dialogue with 
the GOU, although Post also has some "lessons learned" for 
any similar events in the future.  Post sincerely thanks 
USPTO and all participants for their participation.  End 
Summary. 
 
2. In coordination with the U.S. Patent and Trademark 
Office (USPTO), the United Kingdom Intellectual Property 
Office (UKIPO), and Ukraine's State Department of 
Intellectual Property (SDIP), Post conducted an IPR 
enforcement workshop in Kyiv June 5-7.  The approximately 
40 Ukrainian participants included judges, prosecutors, law 
enforcement officials, and regional IPR inspectors.  The 
following U.S. and British experts participated in the 
event: 
 
Todd Reves        - Office of Enforcement, USPTO 
Marina Lamm       - Office of Enforcement, USPTO 
Steve Mellin      - Assistant U.S. Attorney, Eastern 
                    District of Virginia 
Gerald Reichard   - Special Agent, FBI 
Timothy Tymkovich - Judge, U.S. Court of Appeals for the 
                    Tenth Circuit 
Phil Lewis        - Senior Policy Advisor, United Kingdom 
                    Intellectual Property Office (UKIPO) 
Pete Astley       - Principal Trading Standards Officer, 
                    Warrington Borough Council (UK) 
Michael Buchan    - Motion Picture Association (UK Office) 
 
3. Post thanks USPTO for its speedy response to our request 
(ref C) for training in Ukraine on IPR-related court 
proceedings.  While investigations and prosecutions of IPR 
crimes are growing significantly, convictions have lagged 
behind.  Sentencing is often light, failing to produce an 
adequate deterrent to IPR crimes.  This workshop helped to 
focus Ukraine's leading IPR authorities on necessary steps 
to improve IPR enforcement through the courts. 
 
------------ 
MAJOR THEMES 
------------ 
 
4. The workshop covered a variety of themes: Working with 
industry, calculating damages, determining jurisdiction, 
sentencing, links to other crimes, property forfeiture, and 
handling of seized goods and equipment.  As discussed 
below, in each area the experts offered good suggestions 
for Ukraine.  Some of these suggestions could be adopted 
easily, but others may require legal or regulatory reforms. 
 
Working with Industry 
--------------------- 
 
5. U.S. and UK experts repeatedly emphasized the importance 
of working closely with industry, from the initial days of 
an investigation through the trial phase.  GOU officials 
recognized the need to cooperate with industry, but on 
several occasions complained that industry reps in Ukraine 
are not proactive enough in defending their own IP rights. 
On the margins of the workshop, Post conducted the fifth 
meeting of our IPR Enforcement Group (ref A), which brings 
GOU and industry reps together in the hopes of furthering 
their cooperation. 
 
Calculating Damages - Strict Requirements for GOU 
--------------------------------------------- ---- 
 
6. Ukrainian prosecutors and police complained of strict 
legal requirements demanding them to provide an expert 
determination of precise damages caused by an IPR crime, 
 
KYIV 00001452  002 OF 003 
 
 
and to do so within a short period of time prior to 
prosecution.  U.S. and UK experts responded that in their 
systems, estimates of damages are used as guidelines for 
sentencing, but are not required prior to prosecution, and 
are recognized as being inherently imprecise.  They 
encouraged the Ukrainians to find a way of prosecuting such 
cases without quantifying exact damages, which sometimes 
can be nearly impossible.  They also shared practical 
advice on how best to arrive at damage estimates when 
required for sentencing. 
 
Unclear Jurisdiction 
-------------------- 
 
7. IPR-related crimes are currently heard in a wide range 
of Ukrainian courts.  Viktor Moskalenko, Deputy Chairman of 
the High Commercial Court, argued that the Commercial 
Courts should be given primary jurisdiction.  Other courts, 
he said, too often lack the specialized knowledge necessary 
to properly evaluate IPR crimes.  Serhiy Lebid, head of the 
Ministry of Interior's IPR Division, called on the Supreme 
Court to hold a coordination meeting for all court bodies 
in order to esta
blish consistent procedures for IPR crimes. 
 
Weak Sentencing 
--------------- 
 
8. Lebid also complained that, while the criminal code 
permits appropriate penalties, the sentences courts 
actually hand down in IPR crimes are not stiff enough.  Law 
enforcement is investigating and bringing to court an 
increasing number of IPR cases, said Lebid, but judges 
continue to hand down relatively small fines and suspended 
sentences.  U.S. Judge Tymkovich noted that formal 
sentencing guidelines have proven successful in the United 
States in maintaining sentencing consistency and in 
enforcing stricter sentences. 
 
Links to Other Crimes 
--------------------- 
 
9. U.S. and British officials outlined several useful 
tactics in pursuing IPR criminals.  In particular, they 
noted that criminals engaged in piracy/counterfeiting are 
often involved in other crimes, such as drug trafficking. 
Making this connection can often help persuade a court that 
may otherwise not view IPR crimes as particularly serious. 
 
Property Forfeiture 
------------------- 
 
10. U.S. and UK officials described how forfeiture laws can 
allow law enforcement to seize equipment used by IPR 
criminals for official purposes.  Reichard noted that the 
FBI often uses such provisions to provide equipment to 
under-funded, local agencies active in IPR enforcement. 
Ukrainian officials expressed interest but noted that in 
Ukraine this program might raise public concerns of 
corruption. 
 
Storage/Destruction of Infringing Goods 
--------------------------------------- 
 
11. UK officials cautioned that storage of IPR infringing 
goods can present a serious challenge.  SDIP officials said 
that storage of pirated optical disks is not a problem, but 
admitted, after prodding by industry reps present, that 
Ukraine lacks the capacity to store the counterfeit goods 
being found in increasing numbers.  Reves from USPTO argued 
that lack of storage should never be an impediment to 
seizing infringing goods, and noted that rights holders 
might be able to assist.  (Note: Ref A covers this issue in 
greater detail.  End Note.) 
 
--------------- 
LESSONS LEARNED 
--------------- 
 
12. The workshop significantly bolstered our IPR dialogue 
with the GOU by allowing for expert-level discussions of 
the "nuts and bolts" of enforcement.  Still, Post has 
 
KYIV 00001452  003 OF 003 
 
 
learned a few lessons in conducting such IPR training 
events: 
 
Judges are Special 
------------------ 
 
13. Post worked hard to recruit Ukrainian judges to 
participate in this workshop, as numerous industry reps and 
even some GOU officials have described the courts as the 
weakest link in IPR enforcement.  While we succeeded in 
getting fair participation during sessions focused entirely 
on the judge's perspective, our judiciary colleagues failed 
to attend most of the other sessions.  Although it is 
beneficial for judges to discuss IPR enforcement together 
with prosecutors and police, future events targeting judges 
should probably treat them separately in order to assure 
better attendance. 
 
Need to Reach Regions 
--------------------- 
 
14. Due to funding constraints, we were not able to cover 
travel costs for officials from outside of Kyiv for this 
workshop.  As a result, it drew participation mostly from 
national-level institutions.  While dialogue with national- 
level experts remains useful, reaching local judges, 
prosecutors, and police is critical in bringing IPR 
enforcement in Ukraine to the next level.  Ref B outlined a 
proposed assistance program to address this need. 
 
--------- 
FOLLOW UP 
--------- 
 
15.  The inherent risk in an individual training seminar 
that is not part of a longer-term program is that it will 
have no lasting impact on participants or on the policy 
environment in which they operate.  To counter that risk, 
post will compile the chief conclusions and recommendations 
of the seminar for distribution to the participants, 
including SDIP.  Post will request USPTO input and 
clearance on that document. 
 
--------------- 
THANKS TO USPTO 
--------------- 
 
16. Post wishes to sincerely thank USPTO and all USG 
participants for their funding of and involvement in the 
workshop.  Your efforts were very much appreciated, both by 
us and our Ukrainian colleagues! 
 
TAYLOR

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