UKRAINE: IPR ENFORCEMENT COOPERATION GROUP

UNCLAS SECTION 01 OF 03 KYIV 001450 SIPDIS SIPDIS STATE PLEASE PASS TO USTR FOR MOLNAR/GROVES USDOC FOR 4201/DOC/ITA/MAC/BISNIS USDOC FOR 4231/ITA/OEENIS/NISD/CLUCYCK MUMBAI FOR WKLEIN E.O. 12958: DECL: N/A TAGS: ETRD KIPR ECON UP SUBJECT: UKRAINE: IPR ENFORCEMENT COOPERATION GROUP DISCUSSES DESTRUCTION OF INFRINGING GOODS REFS: A) KYIV 1338 B) KYIV 348 C) 2006 KYIV 4359 D) 2006 KIEV 2219 E) 2006 KIEV 881 ¶1. Summary: GOU, Embassy, and industry representatives discussed the destruction of IPR-infringing material at a June 5 Enforcement Cooperation Group (ECG) meeting. GOU reps reviewed recently-passed legislation that provides the authority for destruction and said that implementation will be a challenge. USG and UK experts advised on how best to approach the issue, in particular describing how equipment seized from illegal producers can be used to bolster law enforcement agencies' capabilities. Industry reps expressed concern that lack of government funding could inhibit destruction and expressed their willingness to cooperate with the GOU. A GOU-Industry partnership will indeed be necessary to properly implement the new legislation, and Post will continue to facilitate this kind of dialogue. End Summary. ¶2. On June 5 Ukraine's State Department of Intellectual Property (SDIP) and Econoffs conducted the fifth meeting of the IPR Enforcement Cooperation Group (ECG),with participation of numerous industry representatives. (Note: Refs B-E describe previous ECG meetings. End Note.) The meeting took place on the margins of a seminar devoted to IPR enforcement (septel) and included U.S. and United Kingdom experts in Kyiv for the seminar. ¶3. The following is a list of key participants: GOU --- Valentin Chebotaryov - Deputy Chairman, SDIP Iryna Vasylenko - Head of Enforcement Division, SDIP Sergiy Nikulesko - Head of IP Inspectors, SDIP Tamara Davydenko - Head of Copyright Division, SDIP Olena Shcherbakova - Head of European Integration and Int'l Cooperation Division, SDIP Industry -------------- Michael Buchan - Motion Picture Association (UK Office) Dominic Watson - DuPont Ukraine Natalya Pleshkova - Danone Ukraine Alexander Kotlyarevsky - IFPI Ignat Berezhny - Ukrainian Association of the Music Industry Yulia Andrusiv - British American Tobacco Ukraine Ilya Frolov - Unwind Technology Alexander Pakharenko - IP Law Firm Pakharenko & Partners Mikhail Aristov - Boehringer Ingelheim Pharma GmbH Yuliya Kobuk - American Chamber of Commerce Olga Sydorenko - European Business Association USG and UK -------------- J.P. Schutte - Deputy Economic Counselor, U.S. Embassy 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) GOU: Need to Implement New Destruction Law -------------- ¶4. As described in ref A, the Ukrainian Rada (parliament) on May 31 passed a law amending the Civil and Criminal Codes to allow for the destruction of counterfeit and pirated goods, as well as the equipment used to produce those goods. The ECG meeting focused exclusively on this issue, and expert-level exchanges on the storage and destruction of IPR-infringing goods continued throughout the three-day workshop. SDIP officials at the ECG KYIV 00001450 002 OF 003 described the amendment as a simple fix to provide clear authority for the GOU to destroy all kinds of infringing goods, not just optical disks. (Note: President Yushchenko signed this measure into law on June 11. End Note.) ¶5. SDIP officials noted that the challenge would now be to develop appropriate procedures to implement the law. They identified the following as especially critical issues, and asked for U.S. and UK insights: -- Developing the technical capability to destroy infringing goods (especially more dangerous items like counterfeit pharmaceuticals and pesticides); and -- Financing the storage and destruction (i.e. by the government, infringing party, or right holder). USG: Destroy Goods, Seize Equipment -------------- ¶6. U.S. prosecutor Steve Mellin encouraged the GOU to approach infringing goods and the equipment used by the illegal producers separately. U.S. reps noted that for the infringing goods themselves, the preference is always to destroy. Astley and Buchan described efforts in the UK to destroy goods through a recycling process that is more environmentally friendly. ¶7. According to Mellin and FBI special agent Reichard, the USG preference is to seize rather than destroy equipment used to produce infringing goods. The government could sell any difficult-to-destroy equipment for which destruction is not feasible, such as an actual manufacturing plant. Mellin and Judge Tymkovich noted that, in such cases, the government would have to use follow-on monitoring and other legal tools to ensure that the equipment was never again used to produce infringing goods. Reichard and Lewis described how both U.S. and UK law enforcement officials make use of legal provisions allowing them to seize equipment -- such as cars, computers, and photocopiers -- to use for official law enforcement purposes. The FBI, said Reichard, often uses this provision to provide equipment to under-funded local agencies active in combating IPR crimes. ¶8. SDIP Chairman Chebotaryov expressed concern that such measures could raise suspicions of government corruption in Ukraine. U.S. officials responded that the seizure of equipment for official purposes should proceed only on the basis of a court order, with due process and full transparency. An independent government body could decide where the seized equipment would go. Industry: Who's Going to Pay? -------------- ¶9. IFPI rep Kotlyarevsky described destruction of infringing goods as particularly important because it strikes at the leadership of illegal production, rather than just the street-level retailers. He also noted that, without destruction, enforcement efforts in one country often result in the equipment used to produce pirated material simply moving to a neighboring country. Kotlyarevsky said industry's greatest concern was who would incur the cost of destruction. Lack of government funding would be a major impediment to destruction, cautioned Kotlyarevsky, and he asked if there was precedent for the infringer to pay. (Note: Philip Morris Ukraine has been particularly vocal on the need for the infringers to pay, but its representative was unable to attend the ECG. End Note.) Mellin responded that such precedent does exist in the U.S. system, but that prosecutors instead usually simply seek forfeiture of assets. Judge Tymkovich noted that the government could request the court to assess specific damages against the infringer to cover the costs of destruction. Work with Industry! -------------- ¶10. Buchan, from Britain's MPA, urged the GOU to partner closely with industry when destroying infringing goods or equipment. In the UK, rights holders had legal title to infringing goods, so destruction required their cooperation. Storage of infringing goods was often a major challenge, and industry could help in providing storage space. DuPont rep Watson noted that counterfeit pesticides KYIV 00001450 003 OF 003 could be particularly difficult to destroy; DuPont was interested in assisting the GOU at the technical level. Deputy Econ Counselor noted that the USG had already provided some technical assistance in this area and would look at further opportunities to do so, perhaps in partnership with industry reps and with EU colleagues. Comment: Gov-Industry Cooperation a Two-Way Street -------------- -------------- ¶11. The dominant theme of the ECG discussion on destruction, and indeed of the entire three-day workshop, was that industry is an invaluable and indispensable asset to government in enforcing IP rights. The GOU has gradually become more comfortable in cooperating with industry reps, in part encouraged by these ECG meetings. As Deputy Econ Counselor reminded the ECG participants, however, GOU-industry cooperation must be a two-way street. The GOU will have its hands full in implementing the new law allowing for destruction of all IPR-infringing goods and equipment. Industry can help the GOU develop workable implementing procedures. The European Business Association's IPR Working Group is drafting a set of recommendations for the government. TAYLOR