[ … ]

According to the practice of the Patent Office, a trademark may be also transferred separately from the business it belongs to.

Article 23 of the Law on Trademarks and Industrial Designs does not provide for the acceptance of circumstances arising independently of the will of the owner of the trademark and representing an obstacle to its use. However, according to the practice of the Patent Office, such circumstances should not affect the mark use requirement.

The Law on Trademarks and Industrial Designs does not contain provisions for the protection of geographical indications and does not meet the requirements of this part of the TRIPS Agreement. The legal definition of appellations of origin (as it is in the Lisbon Agreement) is provided for in Article 36 of the Law on Trademarks and Industrial Designs. Provisions on protection of geographical indications are included in the Draft Law on Trademarks and Geographical Indications, and they are in compliance with the requirements of Articles 22-24 of the TRIPS Agreement.

The provisions of Article 44 of the Law on Trademarks and Industrial Designs are not in contradiction with Article 22.3 and Article 23.2 of the TRIPS Agreement. It concerns a specific case – the registration of "multielement (complex) marks", i.e. labels, where one of the elements is an appellation of origin, excluded from legal protection. It may be included in the label mark provided that the applicant is registered as a user of the appellation of origin. Where this requirement is not met, the registration of the mark shall be refused or, if the mark has already been registered, the registration shall be deleted as unlawful under the provisions of Article 23(a) in connection with Article 44 of the Law on Trademarks and Industrial Designs.

The Bulgarian legislation does not contain provisions which set out the practical conditions under which the homonymous geographical indications will be differentiated from each other.

There is no special protection – the Law on Trademarks and Industrial Designs provides the same protection for textile designs as the protection for industrial designs. Article 24 of the Law contains the following legal definition of industrial designs: an industrial design may be any new external rendering of a product, consisting in the particularity of the form, design, ornaments, combination of colours and the like, that may be protected as industrial design with regard to new combinations.

The owner of a protected industrial design may seek, when his rights are infringed, penal or civil prosecution of the infringer. According to Article 52 of the Law on Trademarks and Industrial Designs goods, imported or manufactured in the territory of the Republic of Bulgaria, and unlawfully bearing a foreign trademark, shall be subject to seizure in favour of the State. The offence shall be established in an official document drawn up by the controlling bodies of the Patent Office after they have been informed by the owner about the infringement.

[ … ]

Article 29 of the Law on Trademarks and Industrial Designs provides that the term of protection for industrial designs is five years with no possibility for extension, thus not complying with the requirement of Article 26.3 of the TRIPS Agreement. In the Draft Law on Industrial Designs this requirement is met – it provides for a five years term of protection with a possibility for extension with four further periods of five years, i.e. the total term of protection is 25 years from the filing date of the application for registration.

The Law on Trademarks and Industrial Designs stipulates that the protection of textile designs is provided through their registration in the Patent Office. The procedure for their registration is identical to the procedure for the registration of other types of industrial designs. It includes the examination of their novelty and industrial application. The cost, examination and publication are in the amount that do not unreasonably impair the opportunity to seek and obtain protection. According to Article 3 of the Regulation on the Tariff of Fees Collected by the Patent Office of the Republic of Bulgaria (State Gazette No. 53 of 4 July 1997) the applicants, who may be the authors, small and medium sized enterprises, state education institutions and academic scientific research organizations shall pay fees in the amount of 50 per cent.

Damages awarded by Hungarian courts to successful plaintiffs in cases involving intellectual property rights vary from case to case, depending on the circumstances. Whether damages awarded by the court are adequate to compensate for the injury the right holder has suffered because of an infringement can only be judged on a case by case basis. It seems obvious that plaintiffs in cases involving intellectual property rights are not satisfied with the damages the court awards to them in each and every case. However, it does not appear well founded to state that it is typical of Hungarian courts to award only "quite modest" damages to successful plaintiffs in intellectual property cases. Under Article 35(2) of Act No. XXXIII of 1995 on the Protection of Inventions by Patents (hereinafter referred to as the "Patent Act"), the patentee may, in addition to other remedies, claim damages in accordance with the rules of civil liability. Similar provisions can be found in all other intellectual property laws of Hungary. Therefore, Article 355 of the Civil Code (Act No. IV of 1957) is the legal authority determining the factors to be considered in establishing the amount of compensation. It reads as follows: "(1) The person liable for the damage shall restore the original state, and if it is not possible, or if the damaged person does not so wish for a well founded reason, he shall compensate for the pecuniary and non pecuniary damage of the damaged person. "(2) Damage shall be compensated for in cash, unless the circumstances justify compensation in kind. Compensation in kind may be especially justified if the object of compensation for damages is produced by the person causing the damage, too, or it is otherwise at his disposal. "(3) An annuity can also be stipulated as compensation. Usually, an annuity shall be ordered if compensation is aimed at the support or supplementing the support of the damaged person or his relative entitled to be supported by him. "(4) Under the title of compensation for damages, the decrease in value of the property of the damaged person and pecuniary advantage lost due to the circumstance having caused the damage, as well as the indemnity or costs necessary for lessening or eliminating the pecuniary and non pecuniary damages sustained by the damaged person shall be compensated for." Therefore, Hungarian law complies with Articles 41.1 and 45.1 of the TRIPS Agreement.

Civil procedures for enforcing intellectual property rights take, under current court practice, approximately one year from the initiation of the procedure through the issuance of a judgement by the court of first instance. The average length of time involved in the disposition of a criminal case involving intellectual property right infringements is one to two years. In our view, Hungarian law implements Article 41.2 of the TRIPS Agreement which states that "enforcement procedures shall not entail unwarranted delays". There are two kinds of time-limits established by Hungarian law for judicial and administrative proceedings. On the one hand, time-limits are established for courts or administrative bodies. On the other hand, time-limits are also set for the parties. As to the former, it is only customs administration procedures in which time-limits for the customs authorities apply. Provisions of the latter kind can be found not only in the Border Measures Decree (Government Decree No. 128/1997 (VII. 24.) Korm. on Borders Measures Applicable against Infringement of Intellectual Property Rights in Customs Administration Procedures) but also in the Code of Civil Procedure (Act No. III of 1952) and the Code of Criminal Procedure (Act No. I of 1973). In the Code of Criminal Procedure some time-limits are established for the inspecting authorities and for the prosecutor as well. However, neither the Code of Civil Procedure nor the Code of Criminal Procedure contains any time-limit to be respected by courts in the course of their proceedings. Time-limits in customs administration procedures: - Article 5(1) of the Border Measures Decree establishes a time-limit of five working days following the filing date of the application for the customs authorities to render a decision on the merits of the case. - The applicant must verify within ten working days following the receipt of the decision by the customs authorities ordering the direct supervision of the infringing goods that a civil action for infringement has been instituted by the applicant, in which an application for a provisional measure by the court has been submitted. That time-limit can be extended by another ten working days when justified (Article 5(4) of the Border Measures Decree). Time-limits in criminal procedures: - The inspecting authorities must, based on the denouncement of the crime, decide on the commencement or refusal of the investigation within three days following the filing date of the denouncement. This time-limit can be extended, if circumstances so require, by fifteen plus fifteen plus thirty days by the heads of inspecting authorities (Article 126(1) of the Code of Criminal Procedure). - A criminal investigation has to be terminated within two months following the ordering thereof. This time-limit may, in appropriate cases, be extended by two plus two months and, after that, by the Director of Public Prosecutors (Article 131 of the Code of Criminal Procedure). - The inspecting authorities must forward the documentation to the prosecutor within eight days following the date of notice on the termination of the investigation (Article 145(1) of the Code of Criminal Procedure). - The prosecutor must examine the documentation and accordingly decide on the continuation of the case within fifteen days. In extraordinary circumstances, this time-limit can be extended by another fifteen days (Articles 145(2) and 145(4) of the Code of Criminal Procedure). - In the court phase, the judge, within eight days following the submission of the documentation, decides on the continuation of the case, and, if no additional decisions are necessary, fixes a date for the hearing (Article 167(1) of the Code of Criminal Procedure). Time-limits in civil procedures: - The usual time-limit established by the judge for the parties to carry out certain actions in a lawsuit is fifteen days. There are a number of provisions in the enforcement system in Hungary that ensure expeditious remedies. Criminal procedures and customs administration procedures, by their very nature, have the purpose of taking effective action against any act of infringement of intellectual property rights. However, it is mainly in respect of remedies available in civil procedures where Hungarian legislation has quite recently made significant progress. In particular, the special provisions on provisional measures and the preliminary production and preservation of evidence are worth mentioning. These provisions, which were introduced this year, by the new Trademark Act (Act No. XI of 1997 on the Protection of Trademarks and Geographical Indications), are of an interpretative nature in relation to the Code of Civil Procedure. They have introduced a statutory presumption in favour of intellectual property rights holders that there is a need to protect a right "deserving special appreciation" (as is required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work, invention, trademark or other subject matter is legally protected, and that he is entitled to that protection, i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question. Furthermore, courts have been put under the obligation to decide on requests for provisional measures within fifteen days, at the latest, counted from the day of submission of such a request. For further details of expeditious remedies available under Hungarian law, see our replies to the questions related to specific procedures and remedies. As to deliberate delays, the short time-limits established by the Border Measures Decree have the effect that parties are forced to avoid delays. In addition, under Article 5(1) of the Code of Civil Procedure the court has to prevent all actions which are aimed at, or may lead to, the unjustified prolongation of a lawsuit. Articles 5(2) and 5(4) provide that the court should impose a fine on a party or a representative who, by making false allegations or a declaration or unduly delaying in making statements, hinders the conclusion of the lawsuit. According to Article 120, the fine may amount to Ft 50 000. In addition, several other provisions in the Code of Civil Procedure (e.g. Article 105(1) providing that parties are generally not allowed to validly perform an act once omitted, or Article 107 establishing a time-limit of fifteen days following the deadline omitted for justifying an omission etc.) also raise obstacles to deliberate delays.

Under Article 75 of the Code of Civil Procedure, the costs of proceedings are all costs incurred either in or out of court in relation to the practical and bona fide conducting of a suit by the parties (costs of preliminary inquiries and correspondence, official fees of proceedings, authorization, etc., fees of witnesses and experts, remuneration of interpreters, costs of on the spot trial and inspection, etc.). Disbursements and remuneration of the counsel of a party must also be added to the costs of proceedings. Under Articles 78 and 79 of the Code of Civil Procedure, the defeated party must refund the costs of litigation of the prevailing party. The court determines the amount of costs of litigation taking into consideration the data provided and duly certified by a party. Such costs, in accordance with Article 45.2 of the TRIPS Agreement, include appropriate attorney's fees. An additional provision can be found in Article 95(3) of the Patent Act which provides that the expenses and fees of the patent attorney representing a party are to be added to the costs of the proceeding. However, it belongs to the discretionary power of the court, whether the total amount of the invoice of the counsel of the right holder (the total retainer fee stipulated by the right holder and his counsel) will be regarded as a justified expense. Normally, a maximum of 5% of the total amount disputed or in extremely complicated cases 5% + 50% thereof, i.e. 7.5% is awarded as a justified counsel's fee. This calculation is based upon the mandatory rule (Article 1) of the Decree of the Minister of Justice No. 12/1991 (IX. 29.) IM on the legal counsels' expenses. It is to be noted that the actual costs (telecommunication, photocopying, travel, accommodation, typing and similar miscellaneous costs) paid in connection with the legal counsel's activity are to be reimbursed on top of the fee on the basis of a detailed account of the said costs to be filed by the legal counsel (Article 2). In practice, Hungarian counsels frequently neglect this obligation, they file no account of costs, i.e. they do not use the possibility to have the actual costs reimbursed on top of their fee.

In the sphere of civil law, general principles such as the doctrine of acting in good faith and the doctrine prohibiting the abuse of rights can be mentioned as means available to prevent unlawfully initiated procedures. The Civil Code establishes those doctrines in Articles 4 and 5 in the following way: "4(1) In the course of the exercise of civil rights and the performance of obligations, parties shall act in accordance with the requirement of good faith (...). "5(1) The abuse of rights is prohibited by law. "5(2) Exercise of a right shall qualify as abuse of rights if it is directed to an aim irreconcilable with the social purpose of the right, especially if it leads to (...) harassment of persons, injury of their rights or legitimate interests, or the acquisition of unjust advantages." The doctrine of acting in good faith also appears in Article 5(1) of the Code of Civil Procedure and Article 120 provides a possibility for the courts to impose a fine up to Ft 50 000 on a party acting in bad faith. In addition, various other provisions of the Code of Civil Procedure also raise obstacles to unlawful action, e.g. Article 121.1 requiring that the institution of an action should involve the indication of the facts providing grounds for the right to be enforced and also the enclosure of the necessary evidence thereof, especially documents verifying those facts. If a party does not meet those requirements when filing an action, the judge will give the submission back to that party for completion, fixing a short time-limit, the unsuccessful lapse of which will cause the rejection of the petition, i.e. the failure of taking the action (Article 95(1) of the Code of Civil Procedure). Article 95(2) requires the simultaneous payment of fees by parties submitting a petition. As to further financial consequences, under Article 78, the defeated party must refund the costs of the prevailing party and under Article 80(2) a party who is unsuccessful in certain acts or fails to meet a deadline or causes unnecessary costs in any other way cannot, under any circumstances, claim the refunding of its costs originating thereof. In respect of customs administration procedures, Article 3(4) of the Border Measures Decree lists the persons entitled to apply for such measures to the customs authorities, and under Article 4(1) an applicant must verify both the existence of the trademark, geographical indication or copyright protection and its entitlement to file the application. Articles 4(1) and 4(2) contain other specific criteria that must be met by the applicant, and a security must also be deposited at the customs authorities (Article 8(1) of the Border Measures Decree). If those requirements are not met, the application will be rejected and, therefore, no measures will be taken by the customs authorities (Article 5(2) of the Border Measures Decree). In the case of a successful application, the applicant must institute a civil action for infringement and apply to the competent court for a provisional measure and the applicant must also present sufficient evidence to support its claim (Article 5(4) of the Border Measures Decree). In criminal procedures, general principles such as the doctrine of the right of defense and the presumption of innocence (Articles 3 and 6 of the Code of Criminal Procedure) are applicable against abuse which can also be prevented, even before the case enters the court phase, by the inspecting authorities that are entitled to deny or to discontinue the investigation. The prosecutor may also omit to refer the case to the court or, during the court phase the prosecutor may drop the charge (Articles 127(1), 139(1),145(2) and 170(1) of the Code of Criminal Procedure). In addition, false charge is a crime under Articles 233 236 of the Criminal Code (Act No. IV of 1978). As to damages suffered because of an abuse, a general provision (Article 339(1) of the Civil Code) can be applied which provides that any person who unlawfully causes damage is obliged to give the injured party compensation for it.

Under Article 156 of the Code of Civil Procedure, the court may order by a provisional measure, on request, compliance with the action claim (counterclaim) or with any special claim contained in the request for a provisional measure. A provisional measure can be obtained if it is necessary to prevent imminent damage, or to preserve circumstances giving rise to litigation or to protect the petitioner's rights deserving special appreciation. Furthermore, the court should be satisfied that the drawbacks caused by the measure do not outweigh the benefits attainable by it. The court may subject the ordering of a provisional measure to a security to be provided by the applicant. The facts on which the request is based must be made likely. The request for a provisional measure can only be submitted after the statement of claim has been filed. The court, however, may decide on the provisional measure even before the first trial. The court is required to decide on a provisional measure promptly, but prior to that, it has to hear the parties personally or allow them to present their cases in writing. The hearing of the parties may only be omitted if the provisional measure is urgently needed, or if the party concerned does not comply with the time-limit or period fixed for the hearing. Although an appeal may be lodged against the court's decision ordering a provisional measure, it does not necessarily have a suspensive (delaying) effect on the execution of the measure, i.e. it can be executed in advance. These provisions of the Code of Civil Procedure (as amended by Act No. LX of 1995) meet the requirements of Article 50 of the TRIPS Agreement. Special provisions on provisional measures applicable in the case of infringement have been included in Hungarian industrial property and copyright laws by the Trademark Act and are contained in the Trademark Act itself. Those provisions are of an interpretative nature in relation to the Code of Civil Procedure, and are designed to reflect the specialties of intellectual property cases so that they should enhance the efficiency of enforcement. They have introduced a statutory presumption in favour of intellectual property rights holders that there is a need to protect a right "deserving special appreciation" (as is required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work, invention, trademark or other subject matter is legally protected, and that he is entitled to that protection, i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question. However, this presumption does not apply where six months have already elapsed from the beginning of the infringement, or sixty days from the date on which the applicant became aware of the infringement and the identity of the infringer. (Nevertheless, in such a case a provisional measure can still be obtained, but only under the general rules of the Code of Civil Procedure, i.e. without the "help" of the statutory presumption.) Furthermore, courts have been put under the obligation to decide on requests for provisional measures within fifteen days, at the latest, counted from the day of submission of such a request. The relevant provisions are the following: Articles 95 (2) (4) of the Trademark Act, Articles 52 (3) (5) of the Copyright Act (Act No. III of 1969), Articles 20 (3) (5) of the Industrial Design Decree (Law Decree No. 28 of 1978), Articles 104 (3) (5) of the Patent Act. Furthermore, Articles 207 211 of the Code of Civil Procedure provide that, upon request of the party concerned, preliminary production of evidence is admissible either before or during the action, if, among others, it seems likely that evidence could not successfully be taken during the action or in a later stage of the action, or it would entail considerable difficulties. In urgent cases, the court may decide on the preliminary production of evidence even without hearing the adverse party. In cases of infringements of intellectual property rights, courts may subject the ordering of preliminary production of evidence to providing security (Article 95(6) of the Trademark Act, Article 52(7) of the Copyright Act, Article 20(7) of the Industrial Design Decree, Article 104(7) of the Patent Act). See also Hungary's reply to question 10 of the Checklist of Issues on Enforcement.

Under the provisions of the Border Measures Decree, in order to prevent the internal entry into free circulation (i.e. the importation), the export or re exporting of the illegal (infringing) goods either a specific or a general application may be submitted to the competent customs authority. The action of the customs authority may be requested regarding specific illegal (infringing) goods or shipments in the case of a specific application, whereas, in the case of a general application, the action may be required in relation to a specified producer or country of origin for a period of up to six months. The specific application must be submitted at the customs office where the import or export of the illegal goods is expected to take place or where the customs clearance of such goods has been initiated. Specific applications where the place of the customs clearance is unknown and general applications must be submitted to the National Headquarters of the Customs and Finance Guard. A written application by the right holder is required which must contain the following: (a) the verification that the protection of the trade mark, or the geographical indication, or of the copyright or neighbouring rights in question exists in relation to the customs goods; (b) a statement that the person is entitled to act against the infringement; (c) that person's request that the customs authority should take the appropriate measures to place the illegal goods under direct customs supervision; (d) the description and relevant characteristics of the customs goods to facilitate identification, and the circumstances, data, documents which suggest that the infringement is probable; (e) the acknowledgement of the obligation to provide the security which is required by Article 8 of the Decree; (f) in the case of a general application, the period for which the observation is required. The right holder must communicate the following to the customs authority, provided he is aware of them: (a) the place where the customs goods can be found or their place of destination; (b) such detailed data that enable the shipment, consignment or the package to be identified (with special regard to the data concerning the packaging and value of the customs goods and the transport vehicle); (c) the denomination of the importer, exporter or the owner of the customs goods; (d) the expected time and place of arrival or departure of the customs goods; (e) all information concerning the customs goods or those involved which may be of assistance to the customs authority. Under Article 5 of the Border Measures Decree, the customs authority has to take a decision on the merits within five working days of the date when the application was lodged. If a specific application has been lodged to request a measure in relation to customs goods which have been submitted for customs clearance, the customs authority has to take its decision within five days, taking into account the needs of the customs clearance proceeding. On the basis of an accepted application, the customs authority places the customs goods under direct customs supervision for ten working days, and the right holder is forthwith notified thereof. This deadline may be prolonged by ten working days in a justified case. Under Article 8 of the Border Measures Decree, the right holder must provide a security for the customs authority in order to cover the costs of warehousing the customs goods which are placed under customs supervision. The security is also required of the applicant for the costs of destroying if the customs goods are to be destroyed, and for the possible damages payable to the person submitting the goods for customs clearance. The amount of the security is 5% of the value of the customs goods if their value can be established. If their value cannot be established, the security is a monthly Ft 60 000 (approximately US$ 300) for each application. If a general application for a border measure cannot indicate the value of the goods, and, at the same time, it is filed for a period of six months, the amount of security is as high as Ft 360 000. If the application specifies more countries of origin, or more than one type of goods, it obviously entails the corresponding multiplication of the amount of Ft 60 000 (which is the basic amount of security). If the amount of the security does not cover the costs mentioned above, the right holder must pay for the difference. The customs authority, taking into account the binding decision of the court on the merits of the case, must account for the amount provided by the applicant as a security in accordance with the rules of Act No. C of 1995 on Customs Law, Customs Proceedings and Customs Administration. The right holder must prove within ten working days of receiving the notification on the suspension of infringing goods that he has taken an action for infringement and has applied for a provisional measure to be ordered by the court. If the right holder makes a statement that he does not wish to exercise his rights, or fails to prove that he has applied for a provisional measure, or if the application for such a measure has been rejected by the court, the customs authority must forthwith notify the person submitting the goods to customs clearance, and, following this, the customs goods must be treated in accordance with the application of this latter person. At the same time, the customs authority notifies the right holder of putting an end to the direct customs supervision. Under Articles 5 and 6 of the Border Measures Decree, the right holder must prove within ten working days of receiving the notification that he has taken an action for infringement and has applied for a provisional measure to be ordered by the court. The court decides, within fifteen working days of receiving the application for an interim measure, at the latest, whether to maintain the suspension as a seizure or release the goods. The importer, consignee or owner might lodge an application for compensation for injury caused by wrongful detention or through the detention pursuant to Article 55 of the TRIPS Agreement to the competent court, in a separate procedure.

The Government of Hungary would like to confirm its previous position relating to the submission of statistical data. Articles 63.1, 63.2 and 63.3 of the Agreement required Members to publish, or make publicly available, laws and regulations and final decisions and administrative rulings of general application and also laid down notification requirements with regard to these. However, neither these provisions, nor any other provision of the Agreement created any obligation to collect, publish and notify statistical data on infringement cases and on enforcement measures. Hungarian authorities could only provide such specific data if they developed a separate system for collecting intellectual property rights-related data. This would require the establishment of an information system within the judiciary distinct from that for the enforcement of laws in general, which would not be in harmony with Article 41.5 of the Agreement. To the last four points of the question, see the replies to question numbers 1 and 3 from the EC.

The competent authority in Hungary authorized to accept applications for a request to suspend release of suspected infringing goods is the customs office where the import or export of illegal goods is expected to take place, or where the customs clearance of such goods has been initiated, or, in the case of a so called general application, it may be the National Headquarters of the Customs and Finance Guard.

The "proceedings leading to a decision on the merits of the case" are judicial proceedings. The right holder must prove within ten working days of receiving the notification of the suspension of infringing goods that he has taken an action for infringement and has applied for provisional measure to be ordered by the court.