Review of TRIPS Implementing Legislation - Search

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Article 63.2 of the TRIPS Agreement requires Members to notify the laws and regulations made effective by that Member pertaining to the subject matter of the Agreement to the Council for TRIPS in order to assist the Council in its review of the operation of the Agreement.

This page allows you to search Members' questions and answers on notified laws and regulations. You can consult search results on screen, download and print them in Excel format. You can also download individual documents.

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Page 489 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q4/HUN/1 Hungary United States of America 51. Article 58 specifies procedures to be followed where the competent authorities can act ex officio. Please explain whether the competent authorities in Hungary are empowered to act ex officio and, if so, please identify the intellectual property areas subject to ex officio action.
Basically, the competent authorities can act ex officio in criminal and in administrative cases. In civil law cases, ex officio action is not possible. The Border Measures Decree relates to trademarks, geographical indication, copyright and neighbouring rights. It provides for measures against infringements of these intellectual property rights. The customs authority can take measures ex officio, namely, it can place the customs goods under direct customs supervision, or it can decide to place the customs goods to a bonded warehouse if it obtains such data through its other proceedings, that make it probable that the goods submitted for customs clearance are infringing goods. If, in a proceeding initiated ex officio, the person of the right holder cannot be established, the customs authority must contact the Hungarian Patent Office in the case of an infringement of the protection of trademarks or geographical indications, or the relevant collective administration organization in the case of an infringement of copyright or neighbouring rights. The Hungarian Patent Office, on the basis of the available data, must inform the customs authority of the identity of the right holder within five days. If the collecting administration organization does not provide information on the identity of the right holder within five days, or does not wish to act against the infringement, the customs authority will put an end to the direct customs supervision, and proceeds with the customs clearance in accordance with the application of the person submitting the goods.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 52. Article 59 identifies the remedies that are to be available, including destruction or disposal of infringing goods outside the stream of commerce. Please explain what the law in Hungary permits regarding the disposition of infringing goods, i.e., does the law allow for destruction, disposal or both. Please cite to the law or regulations providing such authority.
Hungarian law permits both destruction and non commercial disposal of goods found to be infringing. For details see the reply to question 22.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 53. Please identify: (a) the competent authority that decides the disposition of the goods, i.e., whether the goods will be destroyed or disposed of outside the stream of commerce; and (b) the competent authority that carries out the destruction or disposal of the goods.
(a) The competent Court. (b) The competent authority which was involved in the case previously (the customs authority, the police, etc.), or the officers responsible for the execution of judgements ("bailiffs").
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 54. Article 60 permits Members to exclude from the provisions for border enforcement small quantities of goods of a non commercial nature carried by passengers or sent in small consignments. Please describe what constitutes a de minimis import that is excluded from the border measures under the law of Hungary.
Non commercial traffic: importation or exportation of customs goods, goods not constituting a commercial quantity, imported by, arriving for, exported or sent out by a natural person, to an individual or total value not exceeding the forint (Ft) amount defined, or below the value limit. Alcoholic beverages: 1 litre of spirits; 1 litre of wine; 5 litres of beer. Tobacco products: 500 cigarettes; 100 cigars; or 100 grams of tobacco. Coffee, tea, cocoa and all spice herbs and their mixtures thereof: 1 kilo each, except for: seasoning paprika and the mixture thereof. Other goods: up to the value of Ft 500/item 10 per type; up to the value of Ft 2 000/item 5 per type; up to the value of Ft 5 000/item 2 per type; over the value of Ft 5 000/item 1 per type. Motor vehicle: 1/year/family.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 55. Article 61 of the TRIPS Agreement requires that Members have criminal procedures and penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark counterfeiting and copyright infringement on a commercial scale. Please describe the provisions in the law of Hungary that fulfil that obligation and provide legal citations.
Article 329/A of the Criminal Code (see the reply to question 1) qualifies violation of authors' rights and neighbouring rights as a crime in the following manner: "(1) That person causing financial prejudice by violating the right of the author on his literary, scientific or artistic work, or that of the performing artist on his performance, or that of the producer on his sound recording, or that of the radio or television broadcaster on his program, shall be deemed to commit a misdemeanour, and shall be imprisoned up to two years, punished to do work for the benefit of the public, or fined. "(2) The penalty for a felony shall be imprisonment up to three years, if the violation of authors' rights and neighbouring rights: (a) causes considerable financial prejudice (over Ft 2 000 000); (b) is committed in a businesslike manner. "(3) The penalty shall be imprisonment up to 5 years, if the violation of authors' rights and neighbouring rights is committed by causing particularly great financial prejudice (over Ft 6 000 000). "(4) That person, who commits the violation of authors' and neighbouring rights recklessly, shall be punished for a misdemeanour with imprisonment up to one year, or with work to be done for the benefit of the public or with fine." These provisions of the Criminal Code entered into force on 15 May 1993. Furthermore, under Article 329 of Criminal Code, an infringement of rights to intellectual creations is committed when a person makes the false impression that he owns the intellectual creation, invention, innovation or industrial design of another person, and causes thereby pecuniary disadvantage to the entitled party, or, misusing his job at an economic organization, makes the utilization or assertion of an intellectual creation, invention, innovation or industrial design of another person dependent on his being given a share in the fee derived, or in the profit or gains originating therefrom. This sort of infringement is a felony and is punishable with imprisonment up to three years. As a result of an amendment to the Criminal Code in 1994, false indication of goods also amounts to a crime, which can be punished by imprisonment up to three years.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 56. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and destruction of infringing goods and any materials and implements the predominant use of which has been the commission of the offence. Please explain the provisions in the law of Hungary that provide for such remedies, describe the circumstances in which those remedies would be imposed and provide legal citations.
Under the Criminal Code, seizure and forfeiture (confiscation) is possible in all cases. The basic rules are the following: The property must be confiscated which has been used or designed as an instrument for the perpetration of a crime, if it is owned by the perpetrator, and also otherwise, if its possession endangers public security; or which came into being through the perpetration of a crime; or which has been received by the perpetrator of a crime from the owner or from another person with the owner's consent, in return for the perpetration. That printed press material in which crime is realized must also be confiscated. In cases defined by the law, that property must be confiscated in respect of which the crime has been perpetrated, or which was the object of a given pecuniary advantage. In the case of violation of authors' rights and neighbouring rights, the tangible property owned by the offender in respect of which the offence has been committed, must be confiscated. Confiscation is admissible even when the tangible property is not owned by the offender, but the owner has previously been aware of the commission of the offence (Article 329/A (5) of the Criminal Code).
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 57. Article 61 also indicates that Members may provide for criminal procedures and penalties in cases of wilful infringement of other forms of intellectual property. Please describe any provisions in the law of Hungary that provide for such procedures and remedies and provide legal citations.
Under Article 296 of the Criminal Code false indication of goods is a crime: the person who markets goods of considerable quantity without the consent of a competitor with such characteristic external appearance, packaging or name from which the competitor or his goods having characteristic, features can be recognized, commits a felony, and is punishable by imprisonment up to three years. Furthermore, deception of consumers is committed when the person who in the interest of increasing the marketability of goods states before large publicity untrue facts in a way suitable for deception in respect of essential features of the goods, or gives information suitable for deception about an essential feature of the goods. It is a misdemeanour and punishable by imprisonment up to two years, labour in the public interest or a fine. For the purposes of applying these provisions the following qualify as essential features of goods: their composition, usability, their influence on health or environment, their treatment, origin, whether they meet legal requirements, standards or habitual requirements for such goods, as well as if the utilization of the goods requires the realization of conditions essentially differing from habitual ones.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 58. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for wilful trademark counterfeiting and copyright piracy. Please explain how the penalties provided under the laws of Hungary comply with that obligation.
See the replies to questions 55 57.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America [Follow-up questions from the US] 1. Please provide statistical information related to civil copyright, trademark, geographical indications, industrial designs, patents, integrated-circuit layout designs, and trade secret enforcement for each of the years 1996 and 1997, including the number of cases filed; injunctions issued; infringing products seized; infringing equipment seized; cases resolved (including settlement); and the amount of damages awarded.
The Government of Hungary reserves its previous position relating to the submission of statistical data.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 2. Please provide statistical information related to criminal enforcement in the area of copyright piracy and trademark infringement for each of the years 1996 and 1997, including the number of raids, prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines were paid and whether the jail term was actually served or was suspended) and any other information establishing that your criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
See the reply to follow-up question 1 above.
22/10/1998
IP/Q/IRL/1/Add.1 Ireland Japan In response to the questions under the review of legislation in the area of copyright and related rights at the Council's meeting of 22-25 July 1996, the Government of Ireland has indicated that Ireland's Copyright Acts 1963-1987 do not contain provisions as required by the TRIPS Agreement and the Berne Convention referred to in the TRIPS Agreement, including moral rights of authors, rental rights for producers of sound recordings, cinematographic works and computer programs, and that a new Copyright bill which takes account of the necessity to comply with all of Ireland's international obligations, will be submitted to the Parliamentary Draftsman (IP/Q/IRL/1). Besides information in IP/Q/IRL/1/Corr.1, dated 21 November 1997, please indicate the current status of the amendment bill and also explain specifically how the said bill brings Ireland's Copyright Act into conformity with the TRIPS Agreement.
The proposed Copyright and Related Rights Bill, which is at a very advanced stage of preparation with a view to early publication, will effect a comprehensive reform of Ireland's current legislation on copyright and related rights and will address specifically the legislative changes necessary in order to implement Ireland's remaining TRIPS Agreement requirements in this area. Rental rights for computer programs are already protected in Ireland under the terms of Statutory Instrument No. 26 of 1993.
21/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union 1. Do Canada's provisions for interlocutory (including interim) relief permit "effective action" by holders of a patent, trademark or copyright interest to preserve and protect those interests in the short term (Articles 41.1 and 50 of the TRIPS Agreement)? Is it not accurate to state that the existing statutory and/or common law standard for obtaining interlocutory relief, as interpreted by the relevant Canadian courts, makes it extremely difficult for patent owners, in particular, to obtain provisional measures protecting their property interests? If this is the case, how does Canada's existing law comply with its obligation to provide remedies which are "expeditious" and which deter further infringements?
The superior courts of the provinces, as well as the Federal Court, have authority to order the effective provisional measures contemplated in Articles 41.1 and 50 of the TRIPS Agreement. In the interests of justice, these measures are exceptional and require proof of irreparable harm in order to dispose, at an interim or interlocutory stage, of issues which would normally not be settled until trial.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union [Follow-up question from the EC] Please specify the legal bases for the superior courts of the provinces, as well as the Federal Court, having authority to order the effective provisional measures contemplated in Articles 41.1 and 50 of the TRIPS Agreement.
In Canada, injunctions, whether on an interim, interlocutory, or in exigent circumstances, ex parte basis for the infringement of intellectual property rights are within the inherent equitable jurisdiction of the superior courts of the provinces and, by extension, the Federal Court. These are the courts which, according to the various intellectual property statutes, have jurisdiction over actions for the infringement of intellectual property rights (Patent Act, subs. 5.1; Plant Breeders Rights Act, subs. 42.1; Trade-marks Act, s. 53.2; Copyright Act, s. 37; Industrial Design Act, subs. 15.1 and s. 15.2; and Integrated Circuit Topography Act, s. 9. There is no statute governing trade secrets.) It has long been recognized that those courts continue to exercise the powers that were being exercised at the time of confederation, i.e., all the jurisdiction, power and authority historically exercised by the courts of common law and equity under the law of England and of the particular Canadian province (Courts of Justice Act, R.S.O. 1990, ch. C. 43, s. 11). As superior courts of general jurisdiction, they have all the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the court's jurisdiction is unlimited and unrestricted in substantive law in civil matters (Giffen v. Simonton (1920), 47 O.L.R. (2d) 92 (H.C.)). That jurisdiction involves the power to grant the appropriate remedy where one does not exist, including the power to grant interlocutory relief where appropriate (R. v. Consolidated Fastfrate Transport Inc. (1995), 22 O.R. (3d) 172 (Ont. Crt. (Gen. Div.)). Strictly speaking, the Federal Court is not a superior court in the same way that provincial superior courts are, and its jurisdiction is limited to "the better Administration of the Laws of Canada", in accordance with s. 101 of the Constitution Act, 1867. However, the Federal Court does enjoy an inherent equitable jurisdiction similar to that of the provincial superior courts in connection with the interpretation and application of federal laws, including the intellectual property statutes (Algonquin Mercantile Corp. v. Dart Industries Canada Ltd., (1988) 2 F.C. 305 at 314 et seq (Fed. C.A.)).
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union 2. Do Canada's "summary judgement" provisions provide a realistic opportunity for obtaining an expeditious remedy against infringement of intellectual property rights, particularly patent rights? Please explain (Article 41.1 of the TRIPS Agreement)?
The summary judgement provisions only apply where, as a result of factual admissions or information contained in documents filed with the court, there is nothing in controversy in the action, and thus the party's right to judgement flows as a matter of law.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union 3. Where a statutory right of appeal is not available from an administrative decision concerning patent, trademark and copyright interests (such as in the case of the Copyright Board), has Canada failed to meet its obligation to provide for review of an administrative decision by a judicial authority? Does Canada take the position that it is in compliance with Article 41.4 so long as "judicial review" is available, regardless of the extent to which such review is circumscribed by statute or jurisprudence?
Canada is in compliance with Article 41.4 of the TRIPS Agreement. By way of information, judicial review is provided for decisions of the Copyright Board and other federal tribunals under Sections 18, 18.1 and 28 of the Federal Court Act. However, such tribunals do not enforce intellectual property rights. The courts do.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union 4. What is the procedure of the Federal Court of Canada, and the superior courts of the provinces, to identify and protect confidential information? Is there a similar procedure for Canada's administrative decision makers? Are there any rules of practice, or otherwise, which set out such a procedure (Article 42 of the TRIPS Agreement)?
Rule 452 of the Federal Court Rules requires that a party allow access to all documents listed in its affidavit of documents. The court may make a protective order where a party establishes, for example, that its legitimate interest in not losing its competitive advantage outweighs the competing interest of the other party in obtaining information which is relevant to the litigation. However, protective orders are only given in unusual circumstances. Other courts observe similar rules. (Intellectual property rights are not enforced by administrative tribunals in Canada.)
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union [Follow-up question from the EC] Please describe what reasons would be considered as "unusual circumstances" where protective orders can be issued and give examples.
In some provinces the courts have recognized the existence of an implied undertaking, on the part of the party receiving information produced in the discovery process, not to use that information in subsequent litigation for penal purposes. This implied undertaking flows from the general right against self-incrimination. Therefore, it is sometimes unnecessary for the court to make a protective order. Where, however, protective orders are granted, their purpose would be to deal with very sensitive information, the disclosure of which could harm the competitive position or reputation of the disclosing party. Thus, in a patent infringement suit it was ordered that only the legal counsel of record and the designated representatives of the receiving party working directly on the litigation could have access to the items produced on discovery and that those items could only be used for the purpose of the litigation (Procter & Gamble v. Kimberly-Clark (1989), 25 C.P.R. (3d) 12).
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union 5. Do Canadian courts have a specific statutory authority to prevent the entry into the channels of commerce of goods which infringe patent rights, i.e. does the Patent Act contain provisions equivalent to Section 53 of the Trade-marks Act or Section 44 of the Copyright Act, or must a right holder depend on the courts' general discretion to provide injunctive relief under Section 57 of the Patent Act or Section 18 of the Federal Court Act? If the latter, can Canadian courts effectively block goods at the border under the existing test for interlocutory relief (Article 44.1 of the TRIPS Agreement)?
Customs detains goods at the border when directed by the courts to do so only under the Trade-marks Act and the Copyright Act. There is provision for detention of imports of infringing goods under the Integrated Circuit Topography Act (section 14), but, to date, this has not been used for any action to be taken by Customs Officials. Section 57 of the Patent Act, together with the inherent equitable authority of the superior courts, would allow such courts to order, where appropriate, that infringing goods not be imported into Canada.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union [Follow-up question from the EC] Please explain in detail under what provisions Canadian courts have a specific statutory authority to prevent the entry into the channels of commerce of goods which infringe patent rights. Under what circumstances would it be considered "appropriate" for the courts to order that such infringing goods not be imported into Canada?
There is no express authority in the Patent Act conferring on the patentee the right to prevent others from importing a patented invention. However, section 42 of the Act confers "the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used". The courts have interpreted these rights as extending to the importation of a patented product, i.e., that importation for purposes which would infringe those rights would also be an infringement. The inherent equitable jurisdiction of the superior courts and the Federal Court would include the authority to make an injunctive order preventing the release of such imported product into the channels of commerce in Canada.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada European Union 6. What statutory provision, or governing jurisprudential rule, ensures that Canadian courts will not provide for release of goods upon the simple removal of the trademark unlawfully affixed (absent exceptional circumstances) (Article 46 of the TRIPS Agreement)?
Section 53.2 of the Trade-marks Act provides that the "court may make any order that it considers appropriate in the circumstances, including an order providing for ... the destruction ... or other disposition of any offending wares, packages, labels and advertising material ...".
12/10/1998

Page 489 of 677   |   Number of documents : 13533

 
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