VZCZCXYZ0001
RR RUEHWEB

DE RUEHKV #1411/01 2041009
ZNR UUUUU ZZH
R 221009Z JUL 08
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC 6045
INFO RUEAWJA/DEPT OF JUSTICE WASHDC
RUCPDOC/USDOC WASHDC
RUEHMO/AMEMBASSY MOSCOW 0361
RUEHSF/AMEMBASSY SOFIA 0037

UNCLAS KYIV 001411 
 
SIPDIS 
 
STATE FOR EUR/UMB AND EB/TPP/IPE - JURBAN 
STATE FOR INL - JVIGIL 
STATE PLEASE PASS TO USTR FOR PBURKHEAD/JGROVES 
USDOC FOR 4231/ITA/OEENIS/NISD - CLUCYCK 
COMMERCE PLEASE PASS TO USPTO AND CLDP 
SOFIA FOR DOJ - MLAMBERTI 
 
E.O. 12958: DECL: N/A 
TAGS: ETRD KIPR ECON UP
SUBJECT: UKRAINE: USG-FUNDED IPR ENFORCEMENT TRAINING 
CONTINUES WORK WITH JUDGES 
 
REFS: A) KYIV 456 
      B) KYIV 404 
      C) 2007 STATE 154669 
      D) 2007 KYIV 1417 
      E) 2007 STATE 55928 
 
SENSITIVE BUT UNCLASSIFIED; NOT FOR INTERNET PUBLICATION. 
 
¶1. Summary: Post, in cooperation with CLDP (Commerce), on 
July 9-10 held an IPR enforcement workshop for Ukrainian 
judges, the second in a series of events that are part of a 
STATE/INL-funded, IPR training initiative.  Seventeen 
judges, mostly from southern Ukraine, as well as 
representatives from Ukraine's IP office, Customs, and 
police, attended the event.  U.S., French, and local 
experts provided a broad introduction to IP law and 
facilitated discussion of problematic issues faced by 
Ukrainian judges, such as calculating damages and 
sentencing.  End Summary. 
 
Continuation of IPR Training Program 
------------------------------------ 
 
¶2. Post held an IPR enforcement workshop for Ukrainian 
judges July 9-10 in Odessa, Ukraine as part of our 
intellectual property rights (IPR) training initiative 
"Creating a Sustainable Ukrainian IPR Training Capability" 
(ref D).  This initiative is part of the State Department's 
2007 IPR Enforcement Training Funds Program (ref E), 
administered by the Bureau for International Narcotics and 
Law Enforcement Affairs (INL), which has allocated USD 
125,000 for Ukraine (ref C).  To implement the training 
initiative, Embassy Economic Section is working closely 
with the Department of Commerce's Commercial Law 
Development Program (CLDP), which is taking the lead in 
organizing the workshops.  This workshop was co-financed by 
CLDP, with its regular budget funds, and by Post, using the 
INL fund cite provided in ref C.  Post will provide copies 
of all funding documents to INL/RM. 
 
Reaching Judiciary at Local Level 
--------------------------------- 
 
¶3. Stephen Gardner, CLDP Chief Counsel, Volodymyr Zharov, 
Deputy Chairman of Ukraine's State Department of 
Intellectual Property (SDIP), and Econoff opened the 
workshop.  A total of 17 judges, mostly from southern 
Ukraine, attended.  Odessa, Ukraine's largest Black Sea 
port, has a reputation as a center for the trade in illicit 
goods, and IPR-infringing goods are no exception.  Sergiy 
Nikulesko, head of SDIP's regional IP inspectors, noted 
that when he and his team attempted to step up raids on 
local retailers a few days before the workshop, they met 
with "unprecedented resistance."  (Note: Econoff found a 
plethora of stalls at the popular Privoz market, only 
minutes from the workshop site, selling pirated DVDs for 
roughly USD 5.  Trademark infringing goods also appeared to 
be in abundance, although were harder to positively 
identify as fakes.  End Note.) 
 
¶4. Zharov emphasized the importance of specialized IPR 
training for judges, saying that SDIP's goal was to help 
create a corps of properly-trained judges who could form an 
IP Chamber within various local courts.  (Note: The High 
Commercial Court maintains a specialized IP Chamber and has 
a reputation for handing down better rulings than local 
courts.  End Note.)  Judges Harry Leinenweber, from the 
U.S. District Court for the Northern District of Illinois, 
and Sylvie Mandel, from the Versailles Court of Appeals 
(France), discussed how to handle IPR cases from a judge's 
perspective.  Karin Ferriter, from the U.S. Patent and 
Trademark Office, and Matthew Lamberti, Department of 
Justice Intellectual Property Law Enforcement Coordinator 
for Eastern Europe, provided additional expertise from the 
U.S. side.  Representatives of SDIP, the Ministry of 
Interior, and the Customs Service also participated. 
 
IPR 101 for Judges 
------------------ 
 
¶5. Presentations covered copyright, trademark, and patent 
law, as well as key international IPR enforcement 
 
provisions.  There were lengthy discussions on how judges 
should calculate damages in IPR cases, a tricky matter in 
Ukrainian law (ref D), but an essential step in prosecuting 
a case.  Lamberti argued that a defendant's sentence (i.e. 
jail term and/or fine) should generally be based on the 
number of infringing copies times the retail price of the 
infringed good, and that damages should be based on the 
estimated actual loss to the victim.  Some judges indicated 
that Ukrainian law was unclear on how to calculate the 
value of the infringement in a piracy case, and that that 
judges should receive additional guidance on that issue. 
The Ukrainian judges also asked for advice on using expert 
testimony and how to handle contradictory rulings by courts 
in different jurisdictions.  (Note: IPR infringers often 
use obscure courts in far-away jurisdictions, presumably by 
paying bribes, to secure rulings against legitimate rights 
holders.  End Note.)  In addition, a few judges expressed 
confusion on what evidence should be required by courts 
before ordering a search of suspicious premises and seizure 
of infringing goods stored in such premises. 
 
¶6. Sergiy Nikulesko, head of SDIP's regional IP inspectors, 
complained that some judges continued to hand down lax 
sentences to IPR infringers -- often the minimum fine of 
UAH 170 (approximately USD 35) -- and argued that such 
sentences did not provide any meaningful deterrent. 
Nikulesko also complained that judges often demanded that 
investigators provide a complete list of CDs and DVDs from 
a seizure, and verify that each disc was in fact a pirated 
copy.  Judge Leinenweber and Lamberti recommended that 
Ukrainian courts consider using sampling techniques to 
limit this burden on investigators. 
 
¶7. In addition, Nikulesko and a private sector speaker said 
that judges too often ordered infringing goods to be 
returned to the infringer, rather than destroyed. 
Nikulesko complained that the legal provisions providing 
for the destruction of IPR-infringing goods remain unclear 
and cumbersome.  In his concluding remarks, Zharov agreed 
that destruction remains a serious issue requiring further 
attention. 
 
TAYLOR