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Publication date: 22.05.2024
lawyer, 23 years of experience in enforcement.
The provisions of Art. 5, 6 of the Law of Ukraine "On the Protection of Rights to Industrial Designs" dated 15.12.1993 No. 3688-XII establishes the sequence of providing legal protection and the criteria for the protection of an industrial design.
Текст Articles 7-10 of Law No. 3688-XII define the circle of persons who have the right to receive a certificate.
A person who wishes to receive a certificate and is entitled to it, submits an application to the National Intellectual Property Authority (NIPO).
The general requirements for the application are contained in Art. 11 of Law No. 3688-XII. The process of making an application is described in more detail in the Rules for making and submitting an application for an industrial design, approved by order of the Ministry of Education and Science of Ukraine dated February 18, 2002 No. 110
According to Clause 3.1 of the Rules for consideration of an application for an industrial design, approved by the order of the Ministry of Education and Science of Ukraine dated 18.03.2002 No. 198, the received application is given a registration number and the date of receipt of the application.
For submitting an application, a fee is paid, the amount of which is determined by the Resolution of the Cabinet of Ministers of Ukraine "On approval of the Procedure for payment of fees for actions related to the protection of rights to intellectual property objects" dated December 23, 2004 No. 1716.
According to Art. 12 of Law No. 3688-XII, the date of submission of the application is the date of receipt of the IP materials containing at least:
- petition in an arbitrary form for the state registration of an industrial design, presented in the Ukrainian language;
- information about the applicant and his address in Ukrainian;
- image of the product, which gives an idea of its appearance;
- the part that outwardly resembles the description of the industrial design, written in Ukrainian or another language. In the latter case, in order to preserve the date of application submission, the translation of this part into Ukrainian must reach the IPPO within two months from the date of application submission.
Provided that the application meets the requirements of Part 1 of Art. 12 of Law No. 3688-XII, a decision is sent to the applicant after he pays the application fee. In case of violation of the established requirements, the decision is not sent, and the application is considered withdrawn, about which the applicant is sent a notification.
According to the provisions of Clause 4.1 of Rules No. 198, after setting the date of application submission and in the presence of a document on the payment of the application fee, a formal examination of the application is conducted during which:
- it is determined whether the declared object belongs to the objects that are provided with legal protection;
- the correctness of the application documents is checked in accordance with Section 3 of the Rules for drawing up and submitting an application for an industrial design, approved by the order of the Ministry of Education and Science of Ukraine dated February 18, 2002 No. 110;
- classification of the claimed object is carried out in accordance with the International Classification of Industrial Designs;
- the unity of the industrial design is checked.
According to Clause 4.5 of Rules No. 198, if the application for an industrial design and the document on payment of the application fee meet the established requirements, the applicant is sent a decision on issuing a certificate.
Clause 4.1.1 of Rules No. 198 establishes that in the event that the object being applied for does not belong to the objects which, in accordance with Art. 5 of Law No. 3688-XII, legal protection is provided, the applicant is sent a decision to reject the application.
Pursuant to Clause 4.3 of Rules No. 198, if the application or document on payment of the application fee does not meet the established requirements, the applicant is sent a notice indicating the inconsistencies.
Depending on the nature of the message received by the applicant, he can take the following actions:
- pay the fee for issuing the registration certificate and send the confirming document;
- appeal the decision to reject the application;
- Correct inconsistencies, provide additional materials necessary for the examination.
In accordance with the provisions of Art. 16 of Law No. 3688-XII, after receiving a decision on state registration of an industrial design, the applicant must, within 3 months, send documents on the payment of the state duty for the issuance of the certificate and the publication fee. This period can be extended by 6 months, provided that a corresponding request is submitted and a fee is paid.
According to Art. 19 of Law No. 3688-XII, the applicant can appeal the decision on the application in court, as well as to the Appeals Chamber (the Appeals Chamber is a collegial body of the IPOR for consideration of objections to the decisions of the IPOR regarding the acquisition of rights to intellectual property objects and other issues referred to its competences by this Law) within two months from the date of receipt of the decision or copies of materials requested in accordance with Part 3 of Art. 14 of the Law.
The right to appeal the decision of the NOIP to the Appeals Chamber is lost in case of payment of the state duty for the registration of the industrial design.
To eliminate discrepancies, 2 months from the date of receipt of the notification by the applicant are given. If the inconsistencies are not eliminated during this period and the applicant does not submit a reasoned request for its extension, the applicant is sent a decision to reject the application (clause 4.3 of Rules No. 198).
After receiving the requested materials, providing the applicant with answers to comments, a decision is made on the possibility of registering an industrial design.
The appeal of the decision also takes place in accordance with Art. 19 of Law No. 3688-XII.
In accordance with the provisions of Art. 16 and Art. 17 of Law No. 3688-XII based on the decision on the state registration of an industrial design and in the presence of documents on the payment of the state duty and publication fee, information on the issuance of the certificate is published in the official bulletin. At the same time, the state registration of the industrial design is carried out.
According to Art. 18 of Law No. 3688-XII, the certificate is issued within a month after state registration.
The certificate is issued to the person who has the right to receive it.
If several persons have the right to receive a certificate, they are issued one certificate.
The term of validity of property rights to a registered industrial design is 5 years from the date of application and is extended at the request of the owner for one or more five-year terms. The total term of validity of property rights to a registered industrial design cannot be more than 25 years from the date of submission of the application.
Legal service "Consultant" will provide professional legal services for business services. Lawyers and lawyers will provide qualified legal support for business, as well as provide assistance in the contract preparation , preparation and execution of documents for registration of property rights to an industrial design, counterparty verification, etc.
