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 488 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 32. Article 50.4 requires that parties be notified when provisional measures have been adopted inudita altera parte. Please describe briefly the procedures followed by each authority able to adopt such measures for notifying affected parties and state the time within which such notice must take place.
Under Article 156(2) of the Code of Civil Procedure, 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 hearing. Article 156(4) of the Code states that the hearing of the parties may only be omitted if the provisional measure is urgently needed or if the party does not comply with the time-limit or period fixed for the hearing. Under Article 156(6), the court's decision on a request for a provisional measure constitutes a judge's order against which an appeal may be lodged. Under Article 219(2) of the Code of Civil Procedure, a decision must be put down in writing within eight days from its passing. An order passed without hearing has to be communicated by way of service to the interested party (Article 219(1) d). For further details see the replies to questions 25 and 26.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 33. Article 50.4 also requires that defendants be afforded a review process to determine whether provisional measures should be modified, confirmed, or revoked. Please describe briefly the procedures a defendant must follow to initiate review proceedings in each of the authorities able to adopt such measures and identify the period within which such proceedings must be initiated.
The time-limit for appeal is fifteen days from the communication of a decision (Article 234 of the Code of Civil Procedure). The court may order that the decision concerning the provisional measure be executed in advance irrespective of the appeal lodged. The judge's order on the provisional measure remains in force until it is repealed by the court at the request of a party or a judgement is passed subsequently on the merits of the case (Article 156(5) of the Code of Civil Procedure).
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IP/Q4/HUN/1 Hungary United States of America 34. Article 50.5 requires that competent authorities be authorized to require applicants to supply other information necessary for the identification of goods concerned by the authority that will execute the provisional measures. Please describe briefly what other information may be required by the authorities and cite the legal authority establishing the basis for this supplemental information.
With regard to civil law remedies there are no special provisions, therefore the general rules are applicable to the supply of information necessary for the identification of goods concerned. In respect of customs administration proceedings, the legal authority is the Border Measures Decree. The application has to contain the description and relevant characteristics of the goods to facilitate identification and the circumstances, data, documents that suggest that the infringement is probable. The place where the goods can be found, their place of destination, such detailed data as enable the shipment, consignment or the package to be identified, the denomination of the importer, exporter or the owner of the goods, the expected time and place of arrival or departure of the goods may be required by customs authorities as supplemental information. See Hungary's reply to question 16 of the Checklist of Issues on Enforcement.
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IP/Q4/HUN/1 Hungary United States of America 35. Articles 50.6 and 50.8 provide that if proceedings leading to a decision on the merits are not initiated within a reasonable time, provisional remedies granted by competent authorities shall be revoked or otherwise cease to have effect, at the request of the defendant. Please identify the relevant provisions in the law of Hungary authorizing the revocation or cessation of provisional measures if review proceedings are not initiated within a reasonable time and specify what constitutes a "reasonable time period" to initiate proceedings.
Under Article 156 of the Code of Civil Procedure, the request for a provisional measure cannot be filed before filing the statement of claim. The order on the provisional measure remains in force until it is repealed by the court at the request of a party, or a judgement is passed subsequently on the merits (Article 156(5) of the Code of Civil Procedure).
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IP/Q4/HUN/1 Hungary United States of America 36. Articles 50.7 and 50.8 provide that judicial and administrative authorities shall have the authority to order the applicant to provide the defendant appropriate compensation for any injury caused by the adoption of provisional measures when said measures are revoked, have lapsed, or when it has been determined that there has been no infringement or threat of infringement. Please describe how the competent authorities determine "appropriate compensation".
The general rules of the Civil Code are applicable to an injury caused by the adoption of provisional measures when those measures are revoked, have lapsed, or when it has been determined that there has been no infringement. The relevant rules of the Civil Code read as follows: "Article 339 (1) That person who causes damage to another person in contravention of law, shall compensate for it. He shall be relieved of liability if he proves that he has acted as it is generally expectable in the given situation. (2) A person liable for the damage may be partially relieved of his liability by court on the basis of circumstances deserving exceptional appreciation. "Article 340 (1) A damaged person shall act in order to prevent or mitigate the loss as it is generally expectable in the given situation. The part of the loss that derived from the failure of the damaged person to perform this obligation, shall not be compensated for. (2) Omission of all those for whose conduct the damaged person is responsible, shall be to his charge. "Article 344 (1) If the damages are caused jointly by two or more persons, they shall bear joint and several liability towards the damaged person, while their liability towards one another shall be divided in proportion to the imputability of their conduct. (2) The damage shall be divided in equal proportions between/among the persons who caused it if the imputability of their conduct cannot be ascertained. (3) A court may omit to declare joint and several liability and may condemn the persons having caused damage in proportion to their respective contributions, if: (a) this does not risk compensation for damage and does not delay it significantly, or (b) the damaged person has contributed himself to the occurrence of the damage or was in delay in the enforcement of his claim without any excusable reason. "Article 355 (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. [...] (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. "Article 359 (1) If the extent of damages cannot be calculated precisely even if only in part the person liable for causing damages may be obliged by court to pay general compensation of a sum enough for full material indemnification of the damaged person. (2) There is no place for reclamation of general compensation under the pretext that the extent of actual damage did not reach subsequently the sum of general compensation. However, if the obligor pays annuity as general compensation, he may claim reduction of the amount of the annuity or modification of the period of paying the annuity in accordance with the change in conditions."
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 37. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable right holders to request suspension of the importation of counterfeit trademarked goods and pirated copyrighted works. Please identify the competent authority in Hungary authorized to accept applications for a request to suspend release of suspected infringing goods and cite the relevant law or regulation governing such authority.
The competent authority in Hungary authorized to accept such applications 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 relevant Acts and Decrees are the following: Act No. C of 1995 on Customs Law, Customs Proceedings and Customs Administration; Government Decree No. 45/1996 (III. 25.) Korm. on the Implementation of Act No. C of 1995; the Trademark Act (for details, please, see the reply to question 1), in particular its Article 28 authorizing right holders to claim under the provisions of special legislation; measures by customs authorities to prevent infringing goods from entering into free circulation on the domestic market; the Border Measures Decree (for details, please see the reply to question 1).
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 38. Please describe the procedures a right holder must follow to obtain border protection by the competent authorities, e.g., if there is a formal application that must be submitted to the competent authority, judicial or administrative, and the information required in the request for suspension and cite the law or regulations providing such procedures.
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 acknowledgment 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.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 39. Please explain whether procedures, permissible under Article 51 of the TRIPS Agreement, are available to stop the export of goods suspected of infringing copyrights and/or trademarks.
In customs administration proceedings, measures can, and have to, be taken against customs goods and other goods in relation to which infringement of the protection of trademarks or geographical indications, or infringement of copyright or neighbouring rights has been committed, even where such goods are destined for exportation or re exportation.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America [Follow-up question from the US] In response to question 39, the Government of Hungary states that in customs administrative proceedings, measures have to be taken where goods infringing trademarks, geographical indications, copyrights, and neighbouring rights are being exported. Please describe the manner in which such action against exports of infringing goods is carried out.
The procedural rules of Section 3 of Decree No. 128 of 1997 are applicable in case of re-export and export of infringing goods.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 40. Article 52 of the TRIPS Agreement requires that rights holders wishing to stop importation of counterfeit trademark goods or pirated copyright works present evidence to the competent authorities that there is prima facie infringement of their trademark or copyright. Please explain what evidence will constitute prima facie infringement in Hungary.
As far as border measures are concerned, an infringement can be seen as prima facie infringement, if the application contains such elements that make the infringement appear probable to the competent customs authority.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 41. Article 52 also requires that the right holder provide a "sufficiently detailed description of the goods" to be stopped. Please explain what is required of the right holder in Hungary for a description to be "sufficiently detailed".
The elements of the application must comply with the requirements set by Article 4 of the Border Measures Decree (see the reply to question 38), otherwise the customs authority will reject the application.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 42. Article 52 requires that the competent authorities notify the right holder that his application is accepted within a reasonable time. Please explain within what period of time the competent authority responds to a request for suspension of release of goods and, if the application is accepted, the length of time during which enforcement action will be taken.
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.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 43. Article 53.1 requires that the competent authorities have the authority to secure from an applicant a security or equivalent assurance sufficient to protect a defendant and to prevent abuse. Please verify that the competent authorities identified above are empowered to require security or equivalent assurance and provide citations to the provisions of law or regulation that grant them that authority.
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.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 44. Article 53.2 provides that the owner, importer, or consignee of goods involving industrial designs, patents, layout designs or undisclosed information that have been suspended by customs authorities should be able, in certain circumstances, to have such goods released on payment of security sufficient to protect the right holder from infringement. Please identify what forms of intellectual property, if any, are subject to provisions of Article 53.2 and cite to the relevant provisions of law or regulations.
The Border Measures Decree concerns only measures to be taken against customs goods and other goods in relation to which infringement of the protection of trademarks or geographical indications, or infringement of copyright or neighbouring rights has been committed. Therefore the goods mentioned in Article 53.2 of the TRIPS Agreement are not covered by the Decree at all.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 45. Article 54 requires that the importer and the applicant be notified promptly of the suspension or release of goods. Please specify the period within which the competent authority to issue a notice that the release of goods has been suspended.
The general rule is to promptly (forthwith) notify the parties in all cases.
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IP/Q4/HUN/1 Hungary United States of America 46. Article 55 makes it clear that the right holder applying for suspension of infringing goods must initiate a proceeding on the merits in an appropriate forum within a reasonable period of time or the goods will be released. Please identify the fora in which an applicant/party may initiate proceedings on the merits that will allow customs authorities to hold the goods beyond ten working days.
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.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 47. Article 55 provides that a review is to take place within a reasonable time at the request of the defending party to determine if the suspension measures should be modified, revoked or confirmed pending the outcome of the proceeding on the merits. Please identify the forum that is authorized to conduct such a review and describe the procedure and cite the applicable law or regulations.
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 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. (On provisional measures see the replies to questions 25 36.)
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 48. Article 56 requires that the authorities be able to require the applicant to compensate the defending party for any injury caused if the detention of goods was unfounded. Please identify the authorities that can order the applicant to pay the importer, consignee or owner compensation for injury caused by wrongful detention or through the detention of goods released pursuant to Article 55 and cite to the applicable law or regulations.
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 reply to question 36 applies mutatis mutandis to such a case.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 49. Article 57 requires that the competent authorities be able to authorize the right holder to inspect the detained goods in order to substantiate the claims. Please explain how right holders are provided an opportunity to inspect suspect goods that have been detained by customs authorities.
The customs authority, observing the provisions on the protection of personal data, has to provide information, at the request of the right holder, on the person applying for the customs clearance, on the name and address of the consignee of the customs goods, and it also has to ensure that the right holder may observe and examine the customs goods in order that the right holder can exercise his rights. For the purpose of accelerating customs proceedings, the customs authority may take samples from the customs goods.
22/10/1998
IP/Q4/HUN/1 Hungary United States of America 50. Article 57 also requires that, where the decision on the merits favours the right holder, the competent authorities also may be given authority to give the right holder information regarding the importer, consignee or consignor. If competent authorities in Hungary can provide information regarding the importer, consignee or consignor to the right holder, please explain how information regarding names and addresses of consignors, importers and consignees and quantities of goods are provided to the applicant after a positive decision of infringement is made, e.g., authorities automatically providing information or by submission of a written request from the right holder, etc. Please cite to the law or regulations providing such authority.
The customs authority, observing the provisions on the protection of data, has to provide information, at the request of the right holder (which should be made in writing), on the person applying for the customs clearance, and on the name and address of the consignee of the customs goods. In respect of the protection of personal data, Act No. LXIII of 1992 is also applicable.
22/10/1998

Page 488 of 677   |   Number of documents : 13533

 
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