Intellectual propertyi Trademark protection
Ukraine has a number of laws that regulate protection of intellectual property. In addition, the state is a member of international organisations and international agreements (e.g., World Intellectual Property Organization, the Berne Convention and the Paris Convention).
As for trademarks, they are subject to the territorial principle of protection and must be registered to enjoy protection. To safeguard a trademark in Ukraine, the foreign franchisor should either register the trademark in Ukraine directly with the Ukrainian patent office or apply for international registration to the WIPO through the Madrid System. The trademark registration is normally valid for 10 years and may then be extended further.
Some trademarks may qualify as well-known brands, which implies a stronger protection for the trademark holder. For this, a trademark must meet certain stringent criteria of identity and public awareness. To formalise such protection, the trademark holder must file an application with the State Intellectual Property Service of Ukraine, supporting it with substantive evidence, or obtain a court judgment in respect of a trademark dispute.ii Know-how protection
Know-how is a novel and rather problematic notion for the Ukrainian legal system. Ukrainian law defines know-how as information obtained through experience and tests and that is:
- not public or easily accessible;
- substantive (i.e., important and useful for producing goods and rendering services); and
- defined (i.e., it is properly described in writing in sufficient detail such that it is possible to verify that it meets the criteria of being non-public and substantive).
In court practice, know-how is further defined as technical knowledge, experience, production secrets and information necessary for solving tasks of a technical or other nature. Know-how is understood to be the result of technical creation, technical or other information, necessary for the production of certain products, or a technical decision, performed as an invention, which is not duly patented. Know-how is often associated to commercial and trade secrets, and is therefore similarly protected. There are no formal filings required to receive legal protection. However, some franchisors also employ patent filings to protect some aspects of their franchise other than trademarks.iii Data protection
Ukraine has rules governing the collection, use, processing and transfer of personal data. Pursuant to the changes in the personal data protection laws of Ukraine, there is no longer a requirement to register personal databases. According to the new rules effective as of the beginning of 2014, the processor of personal data is obliged to notify the Ukrainian Parliament Commissioner for Human Rights only if the processing refers to information related to a particular area of risk (e.g., data on race, political views, health status, sex life, biometric data or movement tracking). In any case, the data controller must ensure an adequate level of protection of personal data it uses and processes.
A company is normally required to obtain consent from an individual to collect and process his or her personal data, with some statutory exemptions. In particular, a company is not required to obtain a consent when it collects and uses basic personal information necessary for a transaction with a consumer or when the law specifically requires the company to collect and retain some personal information (e.g., for the purpose of employment).
When individual consent is required, it must be obtained in either written or electronic form that shows it has been explicitly granted. The company must then retain this confirmation document (information) during the whole time of processing.
With the entry into force of the EU General Data Protection Regulation in 2018, many Ukrainian companies maintaining business ties with the EU and EEA undertake to adjust their data protection policies to the legal requirements of that Regulation.