The rules of Art. 214 of the Criminal Procedure Code of Ukraine provides thatinvestigator, public prosecutor shall be required immediately but in any case no later than within 24 hours after submission of an application, information on a criminal offense that has been committed or after he/she has studied on his/her own from any source, about circumstances which are likely to indicate that a criminal offence has been committed, to enter the information concerned in the Unified Register of Pre-Trial Investigations, to initiate investigation and provide the applicant with the extract from the Unified Register of Pre-Trial Investigations after 24 hours after such entering.
Taking into account special and atypical nature of the criminal offense, the responsibility for which is provided by Art. 229 of the Criminal Code, submission of an application for such a criminal offense does not normally result in the relevant information being entered into the Unified Register of Pre-Trial Investigations.
Thus, investigators submit an application to the Journal of Unified Accounting and report that information that would indicate a criminal offense is missing.
As a result, the applicant is either an individual whose rights have been infringed by the purchase of counterfeit/unwarranted goods in the on-line store, or the trademark holder who has to go to court (investigating judge) with complaintagainst the investigator’s inactivity in the manner provided for in Art. 303 of the Criminal Procedure Code of Ukraine in order to oblige the latter to submit appropriate information to the Unified Register of Pre-trial Investigations.
Usually, a courthearingonconsideration of thecomplaintagainstinactionof the investigatorissetwithinonetotwo months from the dateoffilingsuch a complaint.
Therefore, evenbefore the criminalproceedingsunderArt. 229 of the CriminalCodeofUkrainewe are facedwithadditionalwasteoftime.
Further, itisquite problematic toestablish the “pre-criminal” amount ofdamagecausedto the victim by the ownerof the on-line storebecause ofpossibleabsenceof material damageassuchor the lackofunsufficientits volumetoqualifyas a criminaloffense.
Thus, evenpart 1 ofArt. 229 of the CriminalCodeofUkraineprovidescriminalliabilityforillegaluseofa trade (or service)mark, tradename, qualifiedindicationoforigin, orany otherintentionalviolationof the righttotheseobjects, ifthiscauseda significantmaterial damage.
Material damageshall be deemedas significantifitequals or exceeds20 tax-freeminimumincomesofcitizens, andfor the qualificationofcriminaloffenses the tax-freeminimumincomes ofcitizensisequalto the amount of the taxsocialbenefitsdeterminedbysub-clause 169.1.1 of clause 169.1 of Art. 169 of chapter IV of theTax CodeofUkrainefor the correspondingyearandreaches 50% of the subsistencelevelforanable-bodiedperson.
For example, the tax social benefits in 2019 equals to UAH 960.50, that is, an individual could be subject to prosecutionunder part 1 of Art. 229 of the Criminal Code of Ukraine if there is materiel damage in minimum amount equals to UAH 19210.00; under part 2 of Art. 229 of the Criminal Code of Ukraine – UAH 192100.00.
Therefore, we are facedwithnecessitytocarryoutsufficientlycostly“test”purchasesinorderto“create” material damagein the amount determinedby the CriminalCodeofUkraine.
During the pre-trialinvestigationofcriminalproceedingson the groundsof a criminaloffenseunderArt. 229 of the CriminalCodeofUkraine, we are facedwith the long-termdeterminationofwitnessesortheirabsenceingeneral, theirunwillingnesstotestifyorwitnesses’failuretokeeprelevantevidence (screen-shots ofcorrespondence, checks, paymentorders, etc.) of the purchaseofcertaingoodsvia on-line store.
Inaddition, a lotoftimeisspentbothon the judicialsupportofinvestigative (search) actions, suchassearches, arestofpropertyorweb-sites, sinceforeachsearch, temporaryaccess, arrest the Orderof the investigativejudgeisrequired, aswellasforjudicialappealagainstinactivityof the investigator concerning his/her obligation to execute suchinvestigative (search) actions.
Aswestatedin the article“Problemsofdetermining the amount ofdamagecausedduringcriminalprosecutionfor the unlawfuluseofrights on TM (Art. 229 of the CriminalCode of Ukraine)”, during the examinationorexpertresearhondetermining the amount of material damagecausedby the use ofa trade (or service)markwithoutpermission, the amount ofdamagecaused is determinedbyexpertsbutnot infull volume, atbest case – with help of methodofroyalty, whereby the NoticeofSuspicionto the ownerof the on-line store couldbesentonlyunderpart 1 ofArt. 229 of the CriminalCode of Ukraine and the sanctionis a finein the amount from onetotwothousandof tax-freeminimumincomes of citizens (namely,fromUAH 17000,00 up toUAH 34000,00).
Andfinally. During the criminalproceedingsunderart. 229 of the CriminalCode of Ukrainethemostdifficultis the establishmentof the subjectof a criminaloffense, thatis, the identificationof a particularindividualas the ownerof the domainnameoron-line store and the legalqualificationofactionsof the hostprovidersaslegalentitiesinordertodeterminetheirjoint participationin the criminaloffense.
At the same time, allof the abovementioneddonotindicate the unpromising orinabilitytoprosecuteanon-line store ownertobecriminally responsible for the illegaluseoftrademarksinanyway.
These are just the difficulties on a way torestore justice.
As far as known, keep putting one foot in front of the other.