| IP/Q4/POL/1 |
Poland |
Japan |
9. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they fail to suspend the release into free circulation of goods which infringe intellectual property rights with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
10. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they examine goods which infringe intellectual property rights and nevertheless release them into free circulation with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
11. Please explain the responsibility that the competent authorities and other related authorities take to the importers when they suspend the release into free circulation of goods which do not infringe intellectual property rights with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
12. Is the right holder informed of identities of the importers and consignors when the competent authorities "suspend" the goods which infringe on intellectual property rights or which are suspected to infringe intellectual property rights, as well as the case where the right holder is informed of identities of the importers and consignors stipulated in Article 57 of the TRIPS Agreement?
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
13. Please explain the measures to protect confidential information in the course of the inspection stipulated in Article 57 of the TRIPS Agreement. And please indicate provisions of laws and ordinances which prescribe such measures.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
14. Please explain the procedures of detentions and seizures to be ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
15. Please explain the procedures to appeal against any decisions ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
16. Please explain the basis for calculating the security or equivalent assurance stipulated in Article 53 of the TRIPS Agreement that the competent authorities may require an applicant when they suspend the release into free circulation.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
18. Please explain what kind of cases are regarded as "the exceptional circumstances" in which the competent authorities may allow re exportation of counterfeit trademark goods stipulated in Article 59 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
19. Please indicate names of laws and ordinances and their provisions in which the suspension of the release of goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights is prescribed, as stipulated in Article 51 of the TRIPS Agreement.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
20. Please indicate which intellectual property rights are protected based on the Application by a right holder.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
21. Please explain kinds and contents of documents which shall be provided by the applicant to lodge the Application.
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Please see the reply to question 1.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
22. Please explain the remedies which the judicial authorities order regarding a copyright and other related rights, patents, industrial designs, trademarks and layout designs (topographies) of integrated circuits, including injunctions, damages, expenses, destruction or other disposal of infringing goods and materials/implements for their production.
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Measures taken in the event of infringement of the author's moral rights:
(a) prohibiting the infringement of rights;
(b) ordering the elimination of the infringement, in particular by making a public statement, suitable in its content and form, or otherwise as ordered by the court, including the destruction of illegally produced copies of a work;
(c) ordering a compensation for the moral damage.
With regard to measures taken in the event of infringement of the author's economic rights: please see the answer to question 23.
In cases concerning the protection of industrial property rights, the court may order:
(a) the cessation of infringement of rights (including, with respect to trademarks and chip sets, the cessation of actions which may cause an infringement of rights); and
(b) the elimination of the effects of infringement.
The court may also order the infringer to release the obtained benefits or remedy the damage done. Furthermore, the court may also issue a decision with respect to illegally produced goods and means used for their production (e.g. destruction of an object).
In cases concerning the infringement of rights arising from the registration of a trademark, the court may order the attachment of goods, packaging, and other objects to which a protected trademark or a trademark which is similar thereto was affixed, as well as the attachment of means used for the purpose of advertising or marketing these goods in order to secure the claims before the introduction of these goods to trade, and to prevent the advertising, thereof.
In the above-described cases, the court may also impose an obligation on the relevant party to publish an applicable announcement in a newspaper.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
23. Please explain whether the amount of damages which judicial authorities order the person who infringes intellectual property rights to pay the right holder is adequate compensation for the injury the right holder has suffered, and what criteria and the way for calculation to decide the amount for compensation.
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In the event of a wilful infringement of moral rights, the court may determine a relevant pecuniary compensation for the benefit of the author of the protected work for the moral injury.
In the event of infringement of economic rights, the author may demand:
(a) the release by the defendant of the benefits obtained as a result of infringement of copyright, or the payment by the defendant of an applicable double, or in the case of wilful infringement, triple, remuneration at the time of its pursuing;
(b) that the damage done to the plaintiff be remedied if the action of the defendant was wilful.
When determining the amount of damages, the court shall take into consideration damnum emergens (damage actually incurred by the injured party) and lucrum cessans (profits which the injured party could have obtained but for the damage done to its detriment).
In the event of difficulties or incapability of proving the amount of the above-mentioned claims precisely, their court may adjudicate a relevant amount according to its own decision, based on the consideration of all circumstances of the case.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
24. Please explain whether the amount of damages which judicial authorities order the person who infringes intellectual property rights to pay the right holder includes investigations expense and appropriate attorney's fees.
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Costs of the legal proceedings, i.e. court fees and attorney fees shall be borne by the losing party. The court shall order the defendant to pay such costs for the benefit of the plaintiff regardless of the amount of the determined damages.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
25. Please describe to what extent the amount of damages have been estimated by courts since 1 January 1996. Please explain whether the amount of damages is adequate compensation for the injury the right holder has suffered, and how such civil procedures are consistent with Article 45 of the TRIPS Agreement.
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There is no statistical data which would enable to specify what was the upper limit of damages determined by the court before 1 January 1996. The damages were and still are determined according to the principles described in the answer to question 23. Provisions of Polish civil procedure comply with Article 45 of the TRIPS Agreement.
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21/09/1998 |
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| IP/Q4/POL/1 |
Poland |
Japan |
26. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal cases. Please also explain whether these penalties are consistent with Article 61 of the TRIPS Agreement which requires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.
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Offences against copyright or related rights are subject to a fine, a punishment, consisting in the limitation of freedom or deprivation of freedom.
The court shall inflict the punishment of imprisonment for one to two years, depending on the type of offence committed.
As of 1 January 1998 the new Penal Code passed on 6 June 1997 shall come into force. This Code provides for new types of offences against rights to software, which are subject to the penalty of imprisonment for the period from three months up to five years.
In addition, the new Code specifies new principles of calculating the fine. This shall be calculated in daily rates by way of specifying the number of rates and the value of one rate. The lowest possible number of rates shall be ten, and the highest 360. The daily rate may not be lower than Zl 10.00 nor can it exceed Zl 2 000.00
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21/09/1998 |
|
| IP/Q4/ESP/1 |
Spain |
Japan |
1. 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.
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Proceedings are judicial and must be initiated by the right holder within ten days of being notified of the suspension.
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21/09/1998 |
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| IP/Q4/ESP/1 |
Spain |
Japan |
2. 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 IPRs or which are suspected to infringe IPRs?
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Suspension of release is always agreed to at the request of the right holder when the latter considers that his rights are being harmed or presumes that they may be harmed.
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21/09/1998 |
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