Договірне забезпечення захисту прав ІВ на тимчасово окупованих територіях України: юридичні колізії, судова доктрина та шляхи оптимізації

Abstract

The subject of the study is the analysis and resolution of legal conflicts and the absence of a consistent judicial doctrine regarding contractual protection of intellectual property (IP) rights in the temporarily occupied territories (TOT) of Ukraine. The study focuses on the consequences of full-scale aggression for existing IP contracts (license agreements, commercial concessions), especially through the prism of financial prohibitions and the legal impossibility of fulfilling obligations that violate public order. A comprehensive analysis of the legal regime affecting contractual protection of IP in TOT has been conducted. This includes: Identification of key legal contradictions, in particular the conflict between private obligations and mandatory financial prohibitions. Analysis of the established judicial doctrine of the Supreme Court regarding the application of the de facto occupation regime and the doctrine of limited recognition of acts of the occupying power. Development of practical proposals for optimizing the protection of IP rights, as well as ways to compensate for losses. The study uses a comprehensive theoretical and legal analysis of the regulatory and legal regime of TOT. The key methods are: Analysis of case law and judicial doctrine of the Supreme Court (in particular, the Joint Chamber of the Supreme Court), which is decisive for the formation of approaches to the consideration of IP disputes related to TOT. Comparative analysis of the regimes for the performance of IP agreements in controlled and temporarily occupied territories (TOT). Modeling method for the development of new contractual structures (Contingent IP Clauses) and legislative changes (moratorium on financial obligations). It has been established that the automatic application of legislative financial prohibitions on the transfer of funds between TOT and other territories of Ukraine creates a high risk of IP agreements becoming null and void due to violations of public order. The classic force majeure mechanism is insufficient because it does not cover legal impossibility of performance caused by acts of the state rather than physical obstacles. In order to preserve the legal force of IP agreements and protect rights holders, it is critically important to introduce legislation establishing a special regime of suspension (moratorium) on the fulfillment of financial obligations caused exclusively by a state ban. To strengthen the protection and recording of IP rights violations in the TOT, it is proposed to create a “Digital Reserve Register of IP Rights” at the UCRNAIP. It has been determined that it is critically necessary to amend the Civil Code of Ukraine and special laws in order to establish a presumption of invalidity of acts concluded in the TOT, simplify the standards for proving damages, and introduce renewal periods for the continuation of the validity of protective documents. Thus, contractual IP protection in the TOT remains a legal right without actual enforcement, and only comprehensive legislative and contractual measures will restore the legal rights of Ukrainian rights holders and ensure legal certainty in the unprecedented conditions of armed conflict.