All intellectual property right Draft Laws provide for the President of the competent court to order provisional measures which may include: - Injunction to cease the allegedly infringing act or to prevent it from taking place. - Seizure of the allegedly infringing goods upon import or export as detailed in the responses to questions 15 to 19. - Seizure at any place of the allegedly infringing goods together with materials and implements allegedly used for the infringement. - Preserving or recording relevant evidence in regard to the alleged infringement. - Upon ordering a provisional measure the court may appoint one or more experts to assist with the execution of the order. The legal basis for ordering a provisional measure are the following Articles: Copyright and Neighbouring Rights : Article 44 Patents and Utility Models : Article 40 Trade Marks : Article 34 Geographical Indicators : Article 11 Protection of Trade Secrets : Article 6 Industrial Designs : Article 18 Integrated Circuits : Article 16 Protection of Breeders of New Varieties of Plants : Article 26
[Answer 15: As stated earlier, it is possible to apply for a suspension by the Customs Authority of the release into free circulation of goods, which constitute infringements to intellectual property rights defined in the Copyright and Neighbouring Rights, and the Trademarks Draft Laws . This is possible pursuant to Article 47 of the Copyright and Neighbouring Rights Draft Law and Article 35 of the Trademarks Draft Law, respectively. The relevant Articles provide that the General Directorate of Customs (the Customs Authority) has authority both on its initiative and upon application by the right holder or the public prosecutor to suspend clearance of, and release into free circulation goods if convinced on the basis of prima facie evidence that such goods constitute an infringement of any of the intellectual property rights of the right holder. The authority of the Customs Authority applies to both imports and exports. The administrative procedure referred to above does not preclude the right to resort to the court in the first place. The authority of the Customs Authority to suspend the release into free circulation of goods, which constitute infringements of intellectual property rights, does not apply to goods in transit or to de minimis imports or goods put on the market in another country by or with the consent of the right holder.]
[Answer 16: Article 47 of the Copyright and Neighbouring Rights Draft Law and Article 35 of the Trademarks Draft Law both provide the following: - A decision to suspend the release of the goods may be taken by the Customs Authority upon its own initiative or upon an application by the Public Prosecutor or the right holder. - The application if made by the right holder or the Public Prosecutor must include a sufficiently detailed description of the goods to make them readily recognizable by the Customs Authority. The right holder applicant is also required to submit adequate evidence to satisfy the Customs Authority that there is prima facie an infringement of his intellectual property right. - The Customs Authority has the authority to require the applicant to provide security. The objective is to protect both the defendant and the Customs Authority and to prevent abuse. - The Customs Authority is required to decide within a period not exceeding 3 days on whether to accept the application. The Customs Authority is required to promptly notify the applicant and the importer of its decision to suspend the release of the goods. A petition to challenge the decision may be submitted to the court within 10 days. If within 10 working days after the right holder or applicant - as the case may be - has been served notice of the suspension, the Customs Authority is not informed that the right holder has initiated proceedings leading to a decision on the merits of the case, the goods shall be released, provided that all other conditions for importation or exportation - as the case may be - have been complied with. The 10 days time limit may be extended in appropriate cases for a further period not exceeding 10 days at the discretion of the General Director of Customs. - The Customs Authority is required to provide both the right holder and the importer or exporter - as the case may be - sufficient opportunity to inspect the goods detained. - The importer or exporter - as the case may be - and the owner of the goods may, through the court, seek equitable compensation based on Article 159 of the Civil Code for any injury caused to them through the wrongful detention of the goods. - Further regulatory matters with respect to the form, payable fees, manner in which applications are to be submitted and how they are to be processed together with the amount of security to be provided will be the subject of an Implementing Ministerial Regulation to be issued by the Minister of Finance and National Economy and is currently being considered.]
[Answer 17: The fees for applications to the Customs Authority will be determined in the Implementing Regulation referred to above and is not expected to be more than BD 30 which is equivalent to the filing fees for a provisional measure obtainable from the court. As stated above, both Article 47 of the Copyright and Neighbouring Rights Draft Law and Article 35 of the Trademarks Draft Law provide that the Customs Authority must decide within a period not exceeding 3 days on whether to accept the application. The validity of the Customs Authority’s decision was explained in the response to question 16.]
[Answer 18: Article 47 of the Copyright and Neighbouring Rights Draft Law and Article 35 of the Trademarks Draft Law both provide that the Customs Authority may act upon its own initiative to suspend the release of goods if satisfied that prima facie evidence indicates that they constitute an infringement of any of the intellectual property rights protected by the respective law. There are no special provisions applicable to ex officio action. As for an action which resulted from an application by a right holder, the provisions require the right holder and the importer or exporter - as the case may be - to be notified promptly and the decision remains in force unless subsequently annulled by the court or after the lapse of 10 days without the Customs Authority being informed that proceedings leading to a decision on the merits of the case have been initiated. As explained earlier the 10 day time limit may be extended further up to 10 more days in appropriate cases at the discretion of the General Director of Customs.]
[Answer 19: Other than an authority to temporarily suspend the release of infringing goods as explained above, the Customs Authority is not entitled to order remedies. Remedies are available only through recourse to the courts of law.]