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 496 of 677   |   Number of documents : 13533

Document symbol Notifying Member Member raising question Question Answer Date of document distribution  
IP/Q4/POL/1 Poland European Union 2. Please explain how Polish law complies with the requirements of Articles 42 and 43 of the TRIPS Agreement, which require that enforcement procedures provide a means to protect confidential information obtained during the course of proceedings.
A court procedure provides for suitable measures to protect confidential information as follows: A court hearing during which the evidence consisting of confidential information shall be carried out in camera, i.e. without members of the general public present (Articles 153 and 154 CCP). The files of the case are accessible only to the parties (Article 9 CCP). In cases heard in camera, only the parties and persons supervising the court proceedings may access case files. The officials (judges, court officials, barristers) participating in the examination of cases are under an obligation to keep confidential all information obtained in connection with the proceedings.
21/09/1998
IP/Q4/POL/1 Poland European Union 3. Please explain in detail how the Customs Code of 9 January 1997 will comply with Part III, Section 4 of the TRIPS Agreement relating to border measures.
The Customs Code, in Articles 2 § 3 and 57 §§ 2 and 3, provides for intervention of customs authorities in adherence to obligations under international agreements in order to protect intellectual and commercial property rights (including the TRIPS Agreement). The means and procedure for customs authorities, including suspension of release of goods when intellectual property rights infringement is suspected, shall be regulated by the ordinance of the Council of Ministers. The person entitled to use the customs procedure is one to whose name the custom declaration is made, or a person to whom such rights and obligations have been legally transferred. The required presentation of goods for custom clearance entails the possibility to include such items in the measures adopted by the customs authorities regarding protection of intellectual, industrial or commercial property rights, upon demand from the person entitled to such protection, submitted prior to, and under the scope of the protection granted to him by these authorities.
21/09/1998
IP/Q4/POL/1 Poland European Union 4. With regard to cases that involve the infringement of intellectual property, could the Government of Poland provide data on the number of: - law suits that have been filed, including their respective outcome and the average length from the filing of a complaint until the final judgement;
Civil law suits involving infringement of intellectual property rights constitute a small fraction of cases before courts having jurisdiction in these cases, amounting to about 0.7% of cases filed in these courts.
21/09/1998
IP/Q4/POL/1 Poland European Union - injunctions that have been issued (as defined in Article 44 of the TRIPS Agreement) and explain how such injunctions are being enforced;
In such cases, the courts issue the following injunctions: - order to desist from infringements of the protected right; - order to desist from activities threatening an infringement of a protected right. - order to remove the effects of the infringement made; - order to return benefits obtained from the infringement of protected intellectual property rights; - order to destroy goods (things) - forfeiture to the State Treasury of items serving to make copies of works protected under copyright, - order to seize goods, packages, and other items illegally bearing a protected trademark or a mark similar to it, or means used in advertising and affixing the goods with such trademarks; - order to publish an appropriate statement in the press; - adjudicating compensation of losses incurred by the entitled person due to infringement of his rights; - adjudicating a multiplied royalty due to the entitled person under his economic copyright entitlement; - adjudicating pecuniary compensation for harm suffered (non-economic loss) to the person enjoying moral rights under copyright; and - adjudicating a pecuniary contribution for a community purpose, upon such demand from a person entitled to moral rights under copyright.
21/09/1998
IP/Q4/POL/1 Poland European Union - provisional measures (as defined in Article 50 of the TRIPS Agreement) that have been granted and the average length to obtain such measures (from the request);
The procedural provisions laid down provisional measures compliant with Article 50 of the TRIPS Agreement. These provisions may include: - securing the claim of the creditor (entitled) and - securing evidence. These measures can be undertaken upon demand from the entitled person:. - before the trial proceedings on a claim based on the protection of intellectual property rights, or - at the commencement of and throughout proceedings. The application should occur no later than three days after a written motion is filed with the court. This deadline is deemed "without delay" regarding the remaining area of intellectual property rights protected. The proceeding considering the grant of measures could be held in camera (without hearing the opposing party). The motion should meet general formal requirements for pleadings, and should also make plausible both the claim and the likeness that the refusal of measures will result in depriving the applicant of satisfaction the claim (causing an irreparable damage). The court may adopt any of the measures which it deems necessary. The court may make enforcement (under Article 739 § 3 CCP) or granting the decision on securing the claim (under Article 80 of the Copyright Act) conditional upon the payment of a security deposit to cover possible claims of the other party. The orders issued ex parte are delivered to the absent party together with grounds for the decision. Appeals (complaints to the court of the second instance) are considered under normal procedure, but in cases involving protected copyright and neighbouring rights they are considered within seven days.
21/09/1998
IP/Q4/POL/1 Poland European Union - suspensions at the border of counterfeit trademark/pirated copyright goods or in relation to goods where other intellectual property rights are infringed;
The procedure of suspension at the border of counterfeit trademark goods or goods where other intellectual property rights are infringed, has not been applied yet, as it comes into force on 1 January 1998.
21/09/1998
IP/Q4/POL/1 Poland European Union - criminal cases including the sentences that have been applied; whether they have been executed; and please also explain what kind of infringement of an intellectual property right would be regarded as a violation of criminal law;
The following acts against the protection of intellectual property rights are considered criminal offences by Polish law: (i) usurpation of authorship of all or part of the work or artistic performance of another; (ii) disclosing, without mentioning the author's name or pseudonym, the work of another either in its original or derived form, or a performance, or publicly distorting such work; (iii) other infringements on the rights of the author, in an attempt to make a material profit; (iv) disclosing, without authorisation or without respecting the conditions imposed, work of another person; (v) fixing or reproducing a work of another person, without authorisation or without respecting the conditions imposed; (vi) acquiring, assisting in the sale, concealing or assisting in the concealment of the material embodiment of a work, a performance, a phonogram or videogram disclosed or reproduced without authorisation or without respecting the conditions imposed; (vii) obstructing or hindering the exercise of the right to monitor the use of a work or artistic performance; (viii) appropriating a patent or a design of another with view to obtaining the right to protection; (ix) marking items not protected under patent or protected design in a way misleading as to having such protection; (x) intentional marketing, storing and advertising of such items; (xi) usurpation of authorship of topography of integrated circuits of another; (xii) infringement of registered rights to integrated circuit topography in order to derive material benefits; (xiii) marketing goods or providing services using a registered trademark; (xiv) marking goods or services with a registered trademark in order to market such goods or services, without obtaining the right to do it. The above offences involve the following penalties: - a term in prison from one to two years, depending on the type of offence; - restriction of liberty; - a fine. The penalties for the above offences are increased (regarding an increased upper limit of prison term to three years) if the perpetrator made the infringement into a permanent source of income or if he directs or organises such criminal activities.
21/09/1998
IP/Q4/POL/1 Poland European Union - seizures and/or destruction of counterfeit trademark and pirated copyright goods.
In most cases the court will decide on forfeiture of things derived from the offence even if they do not belong to the perpetrator.
21/09/1998
IP/Q4/POL/1 Poland European Union Furthermore, could the Government of Poland explain and give practical examples: - how the compensation for damages of the infringement of intellectual property rights is calculated (Article 45.1 of the TRIPS Agreement);
The adjudication of damages regarding claims of intellectual property rights infringement is based on the principle of full compensation of the loss, i.e.: (1) the actual losses regarding decreasing assets of the injured, suffered as a result of the infringement, including expenditures purposefully made to identify the perpetrator of the infringement, e.g. a fee of a detective seeking to find the perpetrator; (2) unrealised income which could be earned in absence of the infringement. This liability covers only normal (i.e. under a normal cause-and-effect relationship) consequences of acting or refraining from action by the perpetrator causing the loss. Example: The perpetrator manufactured and marketed 5 000 items of a product illegally marked with a protected trademark, of which he sold 2 000. Marketing this illegal product occurred at the same time when the right holder marketed the product marked with a legal trademark. Thus, the perpetrator inflicted loss on the right holder, described under (2) above. If not for the counterfeit trademark goods marketed and sold, the right holder could sell (marketed legally and with the rightfully used trademark) this quantity of his goods, i.e. 2 000 items. The unit profit on the sale of one item was Zl 5.00, and the loss in unrealized profits will thus amount to Zl 10 000. In addition, the right holder had to, because of the emergence of this illegal "competition", cut production of the work, which resulted in the paying Zl 10 000 in liquidated damages to his suppliers of raw material, and dismissing ten employee persons, paying each a three-month wage as compensation, totalling Zl 1 800. The loss to the injured right holder under direct losses described above in paragraph (1) is thus Zl 11 800. The two components of loss are under a normal cause-and-effect relationship with infringement on the holder's rights, and hence the total amount of damages will be Zl 21 800.
21/09/1998
IP/Q4/POL/1 Poland European Union - what would be regarded as "expenses of the right holder" which have to be reimbursed pursuant to Article 45.2, first half of the first sentence, of the TRIPS Agreement and how they would be calculated;
Under Polish law, the costs incurred by the injured right holder (Article 45.2 of the TRIPS Agreement) constitute eligible cost necessary to exercise his rights (Article 98 CCP) and include: court costs (court charges, cost of experts, travel costs of witnesses), travel costs of the plaintiff and his attorney, and compensation for lost income for the time spent in court, if the plaintiff is not represented by his attorney.
21/09/1998
IP/Q4/POL/1 Poland European Union - whether attorney's fees can be reimbursed and how such fees would be calculated;
If the plaintiff (seeking enforcement of his claim) is represented by an attorney, the cost also includes attorney's fees and expenses, as well as all expenses associated with court costs. Attorney's fees are based on an invoice prepared by the attorney for the entire legal representation. The amount of the attorney's fee may not exceed the maximum fees set out by the ordinance of the Minister of Justice. When the attorney does not provide a list of expenses, the amount is estimated within the limits set out in the ordinance, taking into account the complexity of the case. This rule is applied only in exceptional cases, because attorneys usually produce the invoice. The court may not reduce the amount on invoice if it is within the levels in the ordinance. Recently, because of amendments in legislation, the attorney's fee is freely agreed in a contract between the attorney and his client. In order to protect the losing party, a principle was introduced preventing the adjudicated compensation of the attorney's fee from exceeding the maximum levels set out in the ordinance of the Minister of Justice. these levels are determined according to the value of matter of proceeding (the claim). The court has to, upon demand from the parties, decide on costs of the proceedings and they constitute the sum of all the above expenses of the party
21/09/1998
IP/Q4/POL/1 Poland European Union - whether Article 45.2, second sentence, of the TRIPS Agreement has been implemented in Poland and how such "damages" would be calculated?
Polish law includes this type of authorization of courts, provided for in the second sentence of Article 45.2 of the TRIPS Agreement (e.g. Article 79 § 1 Act on Copyright and Neighbouring Rights).
21/09/1998
IP/Q4/POL/1 Poland Japan 1. Please indicate the "competent authorities" stipulated in Article 51 of the TRIPS Agreement.
The Polish legislation currently in force does not provide for any regulations which would permit the customs authorities to undertake actions in case of suspected infringement of intellectual property rights. As a result, it is not possible for us to provide you with separate answers to each question posed. Legal regulations pursuant to which the customs authorities are obliged to conduct inspections in order to check whether the goods exported and imported from and into the Polish customs area comply with the intellectual property rights, have been included in the Act of 9 January 1997 - Customs Code (Journal of Law No. 23, item 117) which shall become effective as of 1 January 1998, in reliance on their provisions of Part III of the TRIPS Agreement. In regard to the above-mentioned, the Polish delegation is not in a position to answer questions 1 to 21 because the rules regarding Section 4 of Part III of the TRIPS Agreement shall be issued in the rules of implementation to the Customs Code. For the presentation of the rules we quote Articles 2.1 and 57 below. Article 2.1 "Provisions concerning the goods imported to or exported from the Polish customs area shall be applied respectively to the import to and export from the Polish customs area of goods covered under separate regulations by protection of intellectual, trade and industrial property." Article 57 "(1) Goods, regardless of their type, composition, origin, place of shipment or destination may at any time, subject to specified terms and conditions, obtain customs destination admissible for the given goods. "(2) The regulation contained in Section 1 does not exclude the application of international agreements, and prohibitions or limitations arising from separate provisions, in particular those concerning, decency, public security, health care, protection of human or animal life, protection of environment and natural resources, culture goods, intellectual, trade and industrial property, as well as prohibitions and limitations established due to trade. "(3) The Council of Ministers may specify, by an ordinance, the manner of procedure to be adopted by customs authorities in the event of their seizing goods as to which a suspicion has arisen that they have infringed the intellectual, trade and industrial property rights." The protection of intellectual, trade and industrial property rights is subject to the following regulations under the above-mentioned Act. Pursuant to the delegation contained in Article 57, section 3 of the Customs Code, a draft Ordinance of the Council of Ministers specifying the mode of procedure to be adopted by custom authorities in the event of seizing the goods as to which a suspicion has arisen that they have infringed the intellectual, trade and industrial property rights, has been prepared. This draft relies on provisions contained in Section 4 of Part III of the TRIPS Agreement which contains regulations concerning specific requirements referring to measures undertaken during border control. This constitutes the performance by our country of an obligation to adjust provisions of the domestic legislation to international agreements. However, due to the fact that the above-mentioned draft is being discussed now, and its provision may change, it is not possible at the moment to provide independent answers to questions 1 to 21. This can be effected only after the Customs Code, and the secondary legislation which will regulate the competences and mode of procedure to be adopted by customs authorities with respect to the protection of intellectual protection of intellectual property, have come into force, i.e. after 1 January 1998.
21/09/1998
IP/Q4/POL/1 Poland Japan 2. Please explain whether "proceedings leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
Please see the reply to question 1.
21/09/1998
IP/Q4/POL/1 Poland Japan 3. Are there any ways other than the application stipulated in Articles 51 and 52 of the TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder to request the competent authorities to suspend the release of the goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights?
Please see the reply to question 1.
21/09/1998
IP/Q4/POL/1 Poland Japan the competent authorities shall inform the applicant whether or not they have accepted the Application" stipulated in Article 52 of the TRIPS Agreement.
Please see the reply to question 1.
21/09/1998
IP/Q4/POL/1 Poland Japan 5. Please explain the term during which the Application is effective.
Please see the reply to question 1.
21/09/1998
IP/Q4/POL/1 Poland Japan 6. Please explain whether a right holder is obliged to pay any fees to lodge the Application.
Please see the reply to question 1.
21/09/1998
IP/Q4/POL/1 Poland Japan 7. Please indicate provisions of laws and ordinances which prescribe the "proceedings leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement. And please summarize their contents.
Please see the reply to question 1.
21/09/1998
IP/Q4/POL/1 Poland Japan 8. Please explain the specific procedure, if any, to be applied to the goods which are not evident whether or not they infringe intellectual property rights, in Article 55 of the TRIPS Agreement.
Please see the reply to question 1.
21/09/1998

Page 496 of 677   |   Number of documents : 13533

 
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