RESOLUTION OF THE SUPREME ECONOMIC COURT OF UKRAINE

of May 29, 2007

About the termination of actions which violate copyright and collection of compensation for violation of property copyright

(determination of Trial chamber on economic cases of the Supreme Court of Ukraine of 26.07.2007 it is refused to open production on review)

Case No. 20/434

NAME OF UKRAINE

The Supreme Economic Court of Ukraine in structure: the judge Selivanenko V. P. is the chairman, judges Benedisyuk I. M. and Lviv B. Yu.

having considered the writ of appeal of open joint stock company "Tonis TV channel, Kiev (further - JSC Tonis TV Channel)

on the decision of economic court of the city of Kiev of 01.03.2007 and the resolution of the Kiev Economic Court of Appeal of 04.04.2007 on case N20/434

in the claim of Studio Pilot private enterprise, Kiev (further - software "Studio the Pilot")

to JSC Tonis TV Channel

about the termination of actions which violate copyright, and collection of 955500 UAH of compensation for violation of property copyright.

Judicial session on consideration of the writ of appeal is held with participation of representatives:

the claimant - Vyarvelskoy G. V.,

the defendant - Rudenok L. M.

By results of consideration of the writ of appeal Supreme Economic Court of Ukraine ESTABLISHED:

Software "Studio the Pilot" appealed to economic court of the city of Kiev with the claim

recognition of use of JSC Tonis TV Channel of the name Cabinet of curiosities violation of exclusive author's property rights of the claimant on the original name of the work and duty of the defendant to stop such use;

collection with JSC Tonis TV Channel of compensation for violation of property copyright in the amount of 955550 UAH;

duty of JSC Tonis TV Channel to make the official declaration on air to Tonis TV channel with public apology before software "the Pilot Studio for violation of exclusive property copyright.

The decision of economic court of the city of Kiev of 01.03.2007 (the judge Paly of V.V.) left without changes by the resolution of the Kiev Economic Court of Appeal of 04.04.2007 (board of judges in structure: the judge Kapatsin N. V. is the chairman, the judge Smirnov L. G., Maletich M. M.), the claim is satisfied partially: use by the defendant of the name Cabinet of curiosities for designation of own TV program acknowledged illegal and such which violates property copyright of the claimant; JSC Tonis TV Channel obliged to stop such use; for benefit of software "Studio the Pilot" to exact 341 250 UAH of compensation for the called violation of property copyright of the claimant from the defendant; JSC Tonis TV Channel obliged to make the official declaration on air of the mentioned TV channel with public apology before the claimant for committed violation of property copyright. For the rest the claim it is refused. The called court resolutions with reference to instructions of Articles 9, 11, 50, 52 Laws of Ukraine "About copyright and the related rights" (further - the Law) motivated illegal use by the defendant in own program of the original name of the work Cabinet of curiosities on which property rights belong to the claimant that is the basis for application to the defendant of the enforcement powers of material and intangible nature provided by the Law.

In the writ of appeal in the Supreme Economic Court of Ukraine JSC Tonis TV Channel asks to cancel the appealed decision and the resolution of the previous degrees of jurisdiction and to refuse satisfaction of the claim. The claim is motivated with the fact that:

the name of the work Cabinet of curiosities does not contain creativity signs and therefore is not independent object of copyright;

actually under the name Cabinet of curiosities the defendant performed broadcast of the documentary cycle "Curiosities around the world" which producer is the Happy Face Entertainment company on air of Tonis TV channel (the USA, 2003) which context transfer can be made also the word Cabinet of curiosities as the word agrees to the dictionary big Ukrainian-English cabinet of curiosities is translated as "cabinet of curiosities".

In response the claimant specifies the writ of appeal about due research degrees of jurisdiction of case papers and decision making according to regulations of substantive and procedural law.

The representative of software "Studio the Pilot" in judicial session submitted the petition in which he asks to postpone consideration of this case due to the need to study case papers as determination of the Supreme Economic Court of Ukraine about adoption of the writ of appeal in production to software "Studio the Pilot" did not arrive, about date and time of judicial session in the time spent of the representative of software "Studio the Pilot" on leave (to 27.05.2007) it became known "by phone information center". However according to mark of office in reverse side of determination of the Supreme Economic Court of Ukraine of 17.04.2007 about adoption of the writ of appeal the copy of this determination 18.04.2007 was sent to production, in particular, to software "Studio the Pilot". Besides, software "Studio the Pilot" response on the writ of appeal was given 22.05.2007. Considering stated, the Supreme Economic Court of Ukraine does not find reasons for satisfaction of this petition.

Having checked based on the facts of the case established by the previous degrees of jurisdiction correctness of application of regulations of substantive and procedural law by them, having heard explanations of agents of the parties, the Supreme Economic Court of Ukraine came to conclusion about availability of reasons for partial satisfaction of the writ of appeal, considering the following.

By the previous degrees of jurisdiction on case it is determined that:

- based on the author's agreement of 01.01.2002 of NA-CT-/3/-2002 and the deed of conveyance of exclusive property copyright of the office work software "Studio the Pilot" is owner exclusive property author's the concept and the scenario the plan of the television program (the audiovisual work) under the name Cabinet of curiosities are right on the work ", it is created by Kleymenovy Alexander Leonidovich in procedure for accomplishment of office task;

- according to the radio reference of New Channel private company the audiovisual work about the extraordinary phenomena, capabilities of people under the name Cabinet of curiosities was promulgated in the territory of Ukraine 20.09.2002 on air of New Channel TV channel;

- by results of monitoring of the television space of Ukraine which is carried out by GFK Yukreyn overseas enterprise the fact of daily broadcasting by the defendant on air of Tonis TV channel of the program under the name Cabinet of curiosities is fixed from 07.04.2006;

- according to experimental testimony of intellectual property items of 26.01.2007 N51:

the name of the telecast Cabinet of curiosities is inseparable from the work in this connection use of such name without violation of property rights of the author is possible without application of the internal form enclosed by the author and ideological content;

if the name of the telecast Cabinet of curiosities about the extraordinary phenomena, the facts and capabilities of people the Studio the Pilot" was used before creation of such transfer of software ", then it is not original;

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