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 487 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 13. Under Article 42, parties are to be entitled to substantiate claims and present relevant evidence. Please describe any limitations under the law of Hungary on a party's ability to substantiate a claim or to present relevant evidence and cite the legal authority providing such limitations.
Under the law of Hungary, in intellectual property enforcement proceedings there are no such limitations.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 14. Article 42 requires, with one narrow exception, that there be a means to identify and protect confidential information during judicial and administrative intellectual property enforcement proceedings. Please describe the means provided under the law of Hungary for parties to identify and have protected confidential information required to be presented in order to prove their claims and cite the legal authorities providing for such identification and protection.
Article 7 of the Code of Civil Procedure regulates the specific circumstances under which the public may be barred from the trial of the case in order to protect state secrets, trade (business) secrets or secrets pertaining to an official service. Article 89 of the Patent Act contains an additional provision authorizing the court, upon request of a party, to exclude the public from the hearing or from the pronouncing of the decision, even when the requirements of the Code of Civil Procedure mentioned above are not fulfilled. Article 80 of the Trademark Act includes a similar provision. The Act on the Prohibition of Unfair Market Practices and the Restriction of Competition provides for the protection of undisclosed information. It prohibits the use of trade (business) secrets in an unfair manner as well as their unauthorized disclosure to third persons or the general public.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials be able to order a party to an intellectual property enforcement proceeding to produce relevant evidence in that party's control identified by the opposing party when the latter party has presented reasonably available evidence in support of its claims. Please describe how and in what circumstances judges and administrative officials may order production of relevant evidence in intellectual property enforcement proceedings and cite the legal authorities providing for such orders.
Under Article 95(5) of the Trademark Act, where in the course of proceedings for trademark infringement, one of the parties has already made the facts likely to a due extent, the court may, upon request of the party producing evidence, require the adverse party to present any relevant document and other exhibits in its possession and to make inspection possible. All other intellectual property laws listed in the response to question 1 include a similar provision, as a result of their amendment by the Trademark Act.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 16. Information ordered to be produced, referred to in question 15, must be protected if it is confidential. Please describe the means provided under the law of Hungary for protecting such information and cite the legal authority providing for such protection, if those means differ from those described in answer to question 14.
Confidential information is protected as described in the reply to question 14.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 17. Article 43.2 provides that, in the event a party refuses to provide information ordered by the judicial or administrative officials, those officials may be authorized to make preliminary and final determinations adverse to that party. Please describe what sanctions may be imposed on a party that refused to provide ordered information and under what circumstances those sanctions are imposed, citing the legal authority for those sanctions.
There are no special provisions under Hungarian law on sanctions to be imposed on a party that refused to provide ordered information. However, under Article 206(1) of the Code of Civil Procedure, the balancing of evidence should be based on the comparison of statements of the parties and proofs coming up in the course of evidence. Results of evidence are to be considered on the whole and judged according to the conviction of the court.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 18. Article 44.1 requires that judicial and administrative officials be able to enjoin or otherwise prevent infringing activity by a party, including by preventing the entry of infringing goods into the channels of commerce in their jurisdiction. Please describe authority of the judges and administrative officials identified in question 1 to order parties to stop infringements and to prevent infringing goods from entering the channels of commerce in their jurisdiction immediately after clearance of such goods through customs. In addition, please cite the legal authorities authorizing such actions.
Under Article 35(2)(b) of the Patent Act, the patentee may request from the court an injunction that the infringer cease his infringement. Article 27(2) b) of the Trademark Act provides that the right holder may request from the court an injunction that the infringer cease his infringement. Similar provisions can be found in other industrial property laws. Article 52(1) b) of the Copyright Act includes a provision authorizing the right holder to request from the court an injunction that the infringement be stopped and the infringer desist from continuing the infringement. The courts have the authority to order such injunctions also as preliminary measures. For a detailed description of preliminary measures under the law of Hungary see responses to questions 25 36.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 19. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use by third parties authorized by the government, limiting the remedy for infringement to payment of adequate remuneration as provided in Article 31(h). Please describe any such limitations on remedies in the laws of Hungary and cite the legal authorities providing for those limitations.
Articles 31 33 of the Patent Act contain provisions on compulsory licenses. They are fully in line with the requirements that are to be met under Article 31 of the TRIPS Agreement. However, if the government or any third party acting with government approval commits an infringement of an intellectual property right, the general remedies can be sought for such infringement. Therefore, under Hungarian law, there are no limitations on remedies that are available for infringement through government use or use by third parties authorized by the government.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 20. Article 45.1 requires that judicial and administrative officials be able to order an infringer to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please describe the authority of the judges and administrative officials identified in question 1 to order a party found to be infringing to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please explain the factors considered in establishing the amount of the compensation and cite the legal authorities authorizing such compensation orders.
Under Article 35(2) of 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 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 wish so 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."
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 21. Article 45.2 requires that judges and administrative officials be authorized to order payment of a right holder's expenses, including legal fees. Please describe the authority of the judges and administrative officials identified in question 1 to order payment of right holders' expenses, the circumstances under which such an order will be given, the factors considered in establishing the expenses, and cite the legal authorities authorizing such payments.
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 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.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 22. Article 46 requires that judges and administrative officials be authorized to order, in certain circumstances, other remedies, including disposal of goods outside commercial channels or destruction of goods and destruction of materials and implements the predominant use of which is the creation of infringing goods. Please describe the additional remedies available under the laws of Hungary, the circumstances in which such authority will be exercised, the factors considered in determining the nature of the remedies provided, and cite the legal authorities providing for such remedies.
Article 27 of the Trademark Act provides for the following remedies (in addition to damages): "(2) The right holder may depending on the circumstances of the case, have recourse to the following civil remedies: (a) request that the fact of infringement be declared by the court; (b) request an injunction that the infringer cease his infringement; (c) demand that the infringer give information on the identity of third persons involved in the production and distribution of the infringing goods and in the supply of infringing services and of their channels of distribution; (d) demand satisfaction from the infringer by way of a declaration or by other appropriate means; if necessary, the declaration shall be made public by the infringer or at his expense; (e) require surrender of enrichment obtained by the infringement of the trademark; (f) request the seizure of the means used exclusively or predominantly for infringement and of the infringing products and the packaging thereof. "(3) The court may rule, at the request of the proprietor, that the infringing nature of the means, materials, products and packaging seized be removed in particular by removing the trademark or, where this is not possible, that they be destroyed. In well founded cases, the court may order, in place of destruction, that the means and materials seized be auctioned according to the rules of court execution procedure; in such case, the court shall decide how the sum obtained is to be used. "(4) Seizure of the means and materials used for trademark infringement and of the infringing products and packaging shall be admissible even though they are not in the ownership of the infringer if the proprietor knew or had reasonable grounds to know of the trademark infringement." As Article 120 of the Trademark Act has amended other intellectual property laws accordingly, the same remedies are available, mutatis mutandis, under Article 52 of the Copyright Act, Article 11 of the Industrial Design Decree, and Article 35 of the Patent Act.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 23. Article 47 provides that WTO Members may authorize judges and administrative officials to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution. Please describe any authority judges and administrative officials have under the laws of Hungary to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution and describe the circumstances in which this authority would be exercised. Please cite the legal authorities providing for such remedies.
Under Article 27(2) of the Trademark Act the proprietor may, depending on the circumstances of the case, demand that the infringer give information on the identity of third persons involved in the production and distribution of the infringing goods and in the supply of infringing services and of their channels of distribution. As Article 120 of the Trademark Act has amended other intellectual property laws accordingly, the same provision is contained by Article 52(1) of the Copyright Act, Article 11 of the Industrial Design Decree, and Article 35 of the Patent Act. See also Hungary's replies of to questions 5 and 6 of the Checklist of Issues on Enforcement.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 24. Article 48.2 permits WTO Members to exempt public authorities and officials from liability from remedies only where their actions were taken or intended in good faith in carrying out their responsibilities under the law. Please explain any exemption provided public authorities and officials from liability for abuse of enforcement procedures, describe the circumstances in which such limitations would not apply, and cite the legal authorities granting such exemptions.
Under Article 349 of the Civil Code, liability for damage caused in the sphere of state administration can only be established if the damage could not be prevented by ordinary legal remedies, or the damaged person has resorted to ordinary legal remedies appropriate for preventing damages. These rules also apply to liability for damages caused within the sphere of authority of courts and prosecutor's offices. See also Hungary's reply to question 7 of the Checklist of Issues on Enforcement.8
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 25. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to order prompt and effective provisional remedies to prevent an infringement of any intellectual property right. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please identify the provisional measures available to protect intellectual property rights. Please cite the relevant legal authority establishing those provisional remedies.
Under 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 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 form 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, Articles 20 (3) (5) of the Industrial Design Decree, Articles 104 (3) (5) of the Patent Act. See also Hungary's reply to question 10 of the Checklist of Issues on Enforcement.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America [Follow-up question from the US] In its answer to question 25, the Government of Hungary states that the presumption of legal protection for intellectual property rights and entitlement to enforcement does not apply where six months have elapsed from the beginning of an infringement or 60 days from the date the right holder became aware of the infringement. Please describe any possibilities for extension of those deadlines that are available for foreign right holders who have less opportunity to learn of infringements occurring in Hungary and who, when they do learn of such infringements, must seek out Hungarian counsel, have relevant documents translated and generally deal with counsel and courts long distance.
The extension of the six month deadline is not possible even in cases when foreign right holders fail to meet the deadline. In this case the presumption of law is rebutted. This, however, does not affect the rights of the foreign right holder, because provisional measures could be granted by the court under the general rules of the Code of Civil Procedure (Article 156). In such procedure the court is entitled to examine whether the ordering of the provisional measure is, inter alia, necessary to protect the petitioner's rights deserving special appreciation.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 26. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged infringement. Please identify the provisional measures available to preserve relevant evidence in regard to an alleged infringement and cite the relevant legal authority.
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).
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 27. Articles 50.2 and 50.8 require Members to authorize judicial and administrative authorities to adopt provisional measures inaudita altera parte. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please describe briefly the circumstances in which the judicial and administrative authorities are empowered to adopt provisional measures inaudita altera parte and cite the relevant legal authority.
Under Article 156(4) of the Code of Civil Procedure a provisional measure may only be ordered inaudita altera parte if the measure is urgently needed, or if the party does not comply with the time-limit or period fixed for the hearing. See also Hungary's reply to question 11 of the Checklist of Issues on Enforcement.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 28. Articles 50.2 and 50.8 require that judicial authorities and administrative bodies be authorized to grant provisional remedies when a delay is likely to cause "irreparable harm" to the right holder. Please describe briefly what is required by the authorities identified in answers to questions 25, 26 and 27 to establish "irreparable harm" to the right holder.
Under 156(1) of the Code of Civil Procedure, the court may order a provisional measure, on request, 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 and if the drawbacks caused by the measure do not outweigh the benefits attainable by it. See also Hungary's reply to question 10 of the Checklist of Issues on Enforcement.10
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 29. Articles 50.2 and 50.8 also require that judicial authorities and administrative bodies be authorized to grant provisional remedies when there is a "demonstrable risk of evidence being destroyed". Please describe briefly what factors are considered by the competent authorities in determining when there is a "demonstrable risk of evidence being destroyed".
See the replies to questions 25 and 26.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 30. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized to require an applicant to provide evidence to establish with a sufficient degree of certainty that the applicant is the right holder and that infringement has occurred or is imminent. With respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please describe the evidence required by right holders to establish ownership.
In respect of registered industrial property rights (patents, utility models, industrial designs, topographies of microelectronic semiconductor products, trademarks and geographical indications) the Hungarian Patent Office on request certifies the rights of the owner by issuing a copy of the registered data on payment of a fee. (See e.g. Article 54(4) of the Patent Act, Article 47(4) of the Trademark Act.) The copy of the registered data is a public (authentic) document mostly required by courts to establish ownership in such procedures. Taking into account the fact that registration of assignments or licenses of exploitation are not mandatory under Hungarian law, the courts may also accept private documents (contracts) constituting conclusive evidence submitted by the plaintiff to establish ownership. For further details, please, see the replies to questions 25 and 26.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 31. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized to provide a security or equivalent assurance to protect the defendant. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please cite the legal authority establishing a security or equivalent assurance.
Under Article 156(1) of the Code of Civil Procedure, the court may subject the ordering of a provisional measure to a security to be provided by the applicant. Furthermore, in intellectual property cases, the court may subject the ordering of preliminary production of evidence to providing security. It is the court which, considering all relevant circumstances of the case, determines the sum of the security. For further details see the replies to questions 25 and 26.
22/10/1998

Page 487 of 677   |   Number of documents : 13533

 
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