Nadużycie pozycji dominującej przez wykonywanie praw własności intelektualnej w prawie konkurencji Unii Europejskiej

The exercise of intellectual property rights is the realization bythe subject of intellectual property rights of moral and / or economic intellectual propertyrights, the content of which in relation to certain objects of intellectual propertyrights is determined by the Civil Code of Ukraine and other laws. The exercise of intellectualproperty rights is also the realization of economic intellectual propertyrights by other persons on the basis of the permission of the person who has the rightto allow the use of such object of intellectual property rights.The Law «On Amendments to Certain Legislative Acts of Ukraine ConcerningStrengthening the Protection and Protection of Rights to Trademarks and IndustrialDesigns and Counteraction to Patent Trolling» (which entered into force on August16, 2020) has аmended the Law of Ukraine «On Protection of Rights to Marks forGoods and Services» (hereinafter — the Law). The amendments have removed theprovision that a well-known trademark receives the same legal protection as thetrademark for which the certificate is issued. Such changes have created a gap in thelegislation in part of defining what does the exercising of intellectual property rightsto well-known trademarks include.In this connection the following questions arise: (1) can the right to use a wellknownmark (as well as the mark for which the certificate is issued) be the subject ofa license agreement, a commercial concession agreement; (2) whether it is possible tocontribute economic intellectual property rights to a well-known trademark to the authorizedcapital of a legal entity; (3) whether it is possible to transfer such rights onthe basis of an agreement on the transfer of economic intellectual property rights or to provide as collateral. We believe that these issues should be addressed through theadoption of appropriate amendments to Art. 25 of the Law.In our opinion, the right to use a well-known trademark may be the subject of licenseagreements and commercial concession agreements. According to the currentlegislation of Ukraine, it is impossible to transfer economic intellectual propertyrights to a well-known mark to another person.It is expedient to make changes to Art. 25 of the Law, which would provide necessityof creation and functioning of the State register of Ukraine of well-knowntrade marks.The introduction of the proposed amendments to the legislation of Ukraine in thefield of economic intellectual property will help to improve the relevant legal relationsrelated to the exercise of property rights to well-known trademarks.Key words: trademark, well-known trademark, economic intellectual propertyrights, exercise of economic intellectual property rights, assignment (transfer) of economicrights of intellectual property

This chapter provides an overview of the tension between the application of European Union (EU) competition law and the exercise of intellectual property (IP) rights. Key issues are the circumstances in which competition law may be applied to moderate the exercise of IP rights in the relevant market; clauses in intellectual property licensing agreements between undertakings that might be permissible in terms of EU competition law and those which are not; the conditions under which a refusal to supply products protected by an IP right might constitute an abuse of a dominant position by the right holder; and when competition law can provide a defence to an infringement action. The chapter also considers the implications of Brexit.

There are 82 colleges and universities in Henan Province, Compared with the rapid expansion of education scale, the talented persons that are urgently needed and technological innovation facing the economic development actually relatively lag. The amount of patent application is very few in colleges and universities of Henan province, the working situation of colleges and universities' intellectual property right is serious and urgently awaits to strengthen. This article based from the crosswise comparison of patent application and authorized quantity in Henan province and the domestic developed provinces, longitudinal comparison of cities' in Henan province, analyze the present situation of intellectual property rights management in colleges and universities of Henan province, then from the aspets of the intellectual property rights idea, the intellectual property rights management structure, the intellectual property rights control system analyzed the questions and the reasons of intellectual property rights management existed in Henan province, finally from the government level, the university level and the enterprise level proposed the suggestion that strengthened the colleges and universities' intellectual property rights management.

The article is devoted to a comprehensive study of the legal regime governing intellectual property (IP) rights management in the domain of international space activities, with a particular emphasis on the framework of transnational consortia. It presents an interdisciplinary analysis that integrates legal, institutional-economic, and political dimensions of regulating the circulation of IP objects within cooperative space projects involving both public and private actors. The paper argues that, with the intensification of space commercialization, the growing involvement of non-state participants, and the acceleration of technology transfer, IP rights are acquiring not only a technical-legal character but also a strategic function. It is established that traditional national mechanisms for the protection and enforcement of IP rights are insufficient to address emerging challenges in this field, especially concerning objects created in outer space or within international research and technology initiatives. The author substantiates the need to construct a hybrid legal regime for IP governance that would combine the norms of international space law, national legislation, contractual instruments, public law provisions (notably export control), as well as the internal regulations and policies of consortia. Particular attention is given to the transnational space consortium as a novel form of global governance, distinct from the classical transnational corporation, yet fulfilling functions of coordination, institutionalization, and formalization of joint activities among public and private entities. It is emphasized that the establishment of an effective IP governance regime is contingent upon the institutionalization of ex ante licensing procedures, the creation of internal IP management bodies within consortia, and the development of algorithms for the equitable allocation of rights to the results of joint endeavors. The article also highlights potential risks of fragmentation of the international legal order stemming from the increasing autonomy of transnational consortia and the emergence of semi-autonomous normative regimes. In this context, the necessity of modernizing international space law is underlined, with the aim of ensuring a balance between the interests of private innovative development and the principle of equitable access to outer space.

During the execution of the state defense order (hereinafter — SDO) may be created objects of intellectual property rights (hereinafter — OIPR), namely: inventions, utility models, industrial designs and topographies of semiconductor products, as well as objects of copyright in the form of computer programs, databases, engineering, technological and software documentation, etc.The Law of Ukraine «On the State Defense Order», adopted in 1999, in no way regulates the legal relationship regarding the creation of OIPR, their use and disposal of economic intellectual property rights to such objects during the SDO. Economic rights to IPR are types of objects of civil rights. Based on the provisions of Art. 178 of the Civil Code of Ukraine objects of civil law are divided into 3 groups depending on degree of their turnover:1) objects that can be freely transferred to another person;2) objects with limited turnover (may belong only to certain participants in the turnover or whose stay in the civil turnover is allowed by special permission);3) objects withdrawn from civil circulation (which are not allowed in civil circulation).Economic rights to certain OIPR are restricted in civil circulation (for example, to a trade name) or withdrawn from civil circulation (for example, to a geographical indication).In addition, the exercise of intellectual property rights may be restricted in certain areas in order to protect the public interest. Such public interest consists, among other things, of the protection of the state interests during the introduction into civil circulation of property rights to OIPR, created during the execution of SDO.Taking into account the provisions of Article 17 of the Law of Ukraine «On Science Parks», we propose to establish an imperative provision in this Law and the draft Law of Ukraine «On Defense Procurement» (Reg. № 2398-d of November 27, 2019). Such changes should stipulate that economic rights to OIPR created during defense procurement are limited in civil turnover. The exercise of rights to such OIPR is possibleonly with the consent of the state customer in the field of defense.Restriction of civil turnover of economic intellectual property rights to these objects should be aimed not only at eliminating the possibility of transferring (assigning) economic rights to such objects, but should also implement other options for their introduction into civil circulation, including the right to use OIPR or to transfer economic rights to the specified OIPR into pledge. In order to improve the legal regulationof these legal relations, it is necessary to amend the legislation of Ukraine in the field of pledge. Peculiarities of securities of intellectual property rights should be enshrined in a separate section of the Law of Ukraine «On Pledge». Such changes should include, inter alia, the obligation to negotiate agreements on pledge of economic rights to OIPR, created during the implementation of the SDO with the public customer. Relevant provisions should be enshrined in the draft Law of Ukraine «On Defense Procurement». The improvement of the legislation studied in the article will contribute to a systematic solving of the issue of establishing the conditions for the execution of economicrights to OIPR, created as a result of SDO, namely the need for such approval of the state customer, that will ensure public interests in the field of national security and defense of Ukraine by the provision of control over the civil turnover of such objects.

PurposeAs firms turn their innovation activities toward collaborating with external partners, they face additional challenges in managing their knowledge. While different modes of intellectual property right regimes are applied in closed innovation systems, there seems to be tension between the concepts of “open innovation” and “intellectual property rights”. The purpose of this paper is to investigate how firms best manage knowledge via intellectual property rights in open innovation processes.Design/methodology/approachFollowing a mixed methods approach, the authors review relevant literature at the intersection of knowledge management, intellectual property rights, strategic management of intellectual property rights and the open innovation process. The authors identify success drivers through the lenses of – but not limited to – intellectual property rights and classify them in five distinct groups. Expending the view on open innovation beyond its modus operandi, the authors develop the Open Innovation Life Cycle, covering three stages and three levels of the open innovation process. The authors apply their findings to a case study in the pharmaceutical industry.FindingsThe authors provide four key contributions. First, existing literature yields inconclusive results concerning the enabling or disabling function of intellectual property rights in open innovation processes, but the majority of scholars detect an ambivalent relation. Second, they identify and classify success drivers of successful knowledge management via intellectual property rights in open innovation processes. Third, they advance literature on open innovation beyond its modus operandi to include three stages and three levels. Fourth, they test their findings to a case study and show how management leverages knowledge by properly using intellectual property rights in open innovation.Practical implicationsThe findings support firms in managing knowledge via intellectual property rights in open innovation processes. Management should account for the peculiarities of open innovation preparation and open innovation termination to prevent unintentional knowledge drain.Originality/valueThis is one of the first studies to view open innovation as a process beyond its modus operandi by considering the preparations for and termination of open innovation activities. It also addresses the levels involved in managing knowledge via intellectual property rights in open innovation from individual (personal) to project and firm level.

Technology Protection and Competition Policy for the Information Economy. From Property Rights for Competition to Competition Without Proper Rights?

Controlling the Unilateral Exercise of Intellectual Property Rights: A Multitude of Approaches But No Way Ahead? The Transatlantic Search for a New Approach

It is important that SMEs assess their intellectual property and develop policies on the management of intellectual property rights to effectively and efficiently maximise the use of intellectual property rights in relation to threats from competitors. Managers sometimes use their IP rights to suppress other competitors from engaging in the production and distribution of products covered by the IP rights, thereby having the monopolistic power to raise prices of the products to increase profits. This study examines four ways managers at SMEs can adequately manage intellectual property rights which include (1) acquisition (2) exploitation (3) monitoring and (4) enforcement. One of the key conclusions of this study is that Managers should continuously check IP databases to determine the status of their intellectual property rights and whether there is any infringement on their intellectual property rights. Infringement of intellectual property rights can result to huge financial losses as a result of mass production, cheap and substandard copies of original products.

The investment activity is diverse and can be carried out with the use of intellectual property rights in accordance with the current international and Russian investment law. The article aims to identify the specifics of the application of intellectual property rights as investments and the implementation of intellectual investments, i.e. investments endowed into intellectual property rights. The objectives of the study are to consider the categories of an investment and object of investment activity, intellectual property, exclusive and other intellectual rights, as well as to analyze and determine the features of legal regulation of the activity in question at the international and national levels in the Russian Federation. Based on the results of the systematic analysis with the use of formal legal, comparative and other research methods, it is concluded that investments as a property in a broad sense may include both exclusive and other non-personal intellectual property rights to the results of intellectual activity and equated means of individualization of goods, works, services and enterprises. At the same time, they exclude intellectual property itself as a set of various types of intangible products, moral and other personal non-proprietary intellectual rights by virtue of their inalienable and non-transferable character. It is argued to be the same with respect to the object of investment activity, i.e. the property which the investment is endowed in and is capable to bring income to the investor in the future. Investments into such intellectual property rights can be called as intellectual investments.The legal regulation of investment activity with the use of intellectual property rights has a dual character (in the sense that it is carried out by different investment legislative acts with the similar subject of their regulation) and depends on the type of a particular object used. If intellectual property rights are invested in fixed capital, then they are to be recognized as capital investments and are governed by the Federal Law of February 25,1999 No. 39-FZ “On Investment Activity in the Russian Federation Carried out in the Form of Capital Investments”. If intellectual property rights are used as the object of investment activity, i.e. where investments are endowed in, such intellectual investments are subject to the regulation by the Law of the RSFSR of June 26, 1991 No. 1488-1 “On Investment Activity in the RSFSR”.

Public policy and global technological integration: Edited by Frederick N. Abbott and David J. Gerber, 1997, hard-cover, Kluwer Law International, 373 pp., £88.00, ISBN 90 411 0655 3

The purpose of this chapter is to examine the question whether the ‘expand ing bounds of intellectual property’ also require expanding control of the exercise of intellectual property rights by antitrust laws. Such an expanded control may be a matter not only of substantive law, but also of the inter national reach of antitrust law and, as a consequence, of harmonizing its rules on the international level. However, the need for expanded control can only be determined by reference to the existing level of control. In this respect, con ventional wisdom is based on the assumption that there is a conflict between the exclusivity that intellectual property affords to the owner of protected subject matter and the kind of unrestricted competition that the antitrust laws are intended to safeguard. In particular, the conflict potential is thought to result from the risk that the exploitation of intellectual property by contract is used as an opportunity to restrain competition beyond the restrictive effects that are inherent in the exclusivity. In this perspective, the role of antitrust law is simply to contain the exercise of intellectual property rights within their bounds and limits. A whole body of intellectual property-related rules of antitrust law has been developed to deal with this conflict, and it has been developed along different lines in different countries.

This chapter reviews the legal treatment of parallel imports of trademarked goods in the European Economic Community (now European Union), until the adoption of Directive 89/104/EEC. In particular, the principles developed by the ECJ for the investigation of the legality of the exercise of trademark rights under Articles 30 and 36 EEC Treaty (now Articles 34 and 36 of the TFEU) are analysed. The previously mentioned doctrines include, specifically, the doctrine of “exercise/existence of the right”, the doctrine of “common origin”, the doctrine of “specific subject matter of the right”, the doctrine of “essential function of the right” and, finally, the doctrine of “Community-wide exhaustion of rights”. The aim of those doctrines was exactly to demarcate the exercise of intellectual property rights that was consistent with the goal of the common market from the one that was not consistent with that goal. Despite the fact that provisions regulating the issue of the legality of parallel imports are set out in the applicable EU secondary intellectual property law, including EU secondary trademark law, the ECJ’s case law on the legality of the exercise of intellectual property rights under Articles 30 and 36 of the EEC Treaty (now Articles 34 and 36 of the TFEU) retains its importance. This is because the aforementioned provisions must be interpreted in the light of that case law, as expressly the Court stated in decisions concerning the legality of parallel imports of trademarked goods.

The author discusses the rules which govern the way in which intellectual property can be dealt with. The state gives away monopolies in the form of intellectual property rights. However, the state also controls the way in which those monopolies can be used, primarily through law known as competition law. The author also discusses the interaction between the two and the impact of European and United Kingdom competition law on the exercise of intellectual property rights. (19 pages)

Intellectual property rights are legal rights that protect intellectual assets, which hold signifi cant value for individuals and even greater importance for the economy and society as a whole. Liability insurance against the infringement of intellectual property (IP) rights is becoming increasingly relevant as a mechanism for managing unforeseen risks arising from third-party proprietary claims and from unauthorized use of intellectual property rights. This paper fi rst examines the nature and scope of various intellectual property rights, alongside the advantages of liability insurance in cases of infringement of such rights. It then explores what may constitute the subject-matter of insurance coverage, based on the nature of intellectual property rights, general insurance principles, and contractual frameworks. The aim is to distinguish this specifi c type of liability insurance within the broader context of IP protection. Finally, the paper examines the scope of insurance coverage in relation to specifi c costs incurred when the insured appears as a defendant in legal proceedings, as well as when the insured takes actions to protect and enforce their intellectual property rights.