Once the right holder has submitted all the required documentation and this is found to be correct, the applicant is immediately informed that the application has been accepted.

In Spain no fees are required for lodging the application even when this is accepted.

Proceedings leading to a decision on the merits of the case in accordance with Article 55 of the TRIPS Agreement are those set out in the Check-List of Issues on Enforcement which has been fully answered by Spain in document IP/N/6/ESP/1.

It is the right holder who, on seeing the goods and examining the experts' report, decides whether the goods are counterfeit or not. If they are counterfeit he must lodge a complaint with the court. If the customs do not receive a copy of the complaint within the deadlines laid down for doing so in the previous reply, release of the goods will be authorized.

Where the customs authorities act in good faith they cannot be held liable in the cases mentioned in these two questions. However, if they act in bad faith they can be held liable under Title X of the Law on the Juridical Regime of Public Authorities and Common Administrative Proceedings, which governs the liability of public authorities and their personnel.

See the reply to question 7.

The exercise by a customs office of its powers in regard to combating counterfeit or pirated goods does not affect its liability towards persons concerned by import operations where such persons have been harmed by its action.

The right holder is given the following information: - Value and quantity of goods; - name and address of the importer; - name and address of the consignee; - the customs office where the goods were seized.

Royal Legislative Decree 1/96 of 12 April approving the revised text of the Intellectual Property Law, regularizing, clarifying and harmonizing the existing provisions in the matter. General Tax Law (Article 113). Organic Law 5/92 regulating the computerization of personal data. Order dated 27 July 1994 of the Ministry of the Economy and Finance regulating the computerized personal data files held by the central departments and autonomous bodies of the aforementioned Ministry.

Once the complaint has been brought before the court, the established judicial procedures are followed in both civil and criminal matters.

In the case of rulings by the Customs and Excise Department, an appeal can be lodged via the administrative challenge procedure. As regards the courts, the provisions on remedies apply both in civil matters (Articles 376 to 406 of the Law on Civil Procedure) and in criminal matters (Articles 216 to 238 and 787 to 795 of the Law on Criminal Procedure).

No security is required in Spain apart from a written acceptance of liability whereby the right holder undertakes to meet his liability to the importer or exporter arising from an act or omission by the right holder, or where it is subsequently found that the goods were not counterfeit or pirated. He must likewise undertake to guarantee payment of any expenses incurred because the goods were kept under customs control. All this is laid down in Article 3(6) of Regulation (EC) No. 3295/94. The cost of detaining or destroying counterfeit goods will therefore in no case be chargeable to the exchequer and should fall on the counterfeiter or, failing him, the applicant (Article 8(1a) of the EC Regulation).

See the reply to question 14.

The re-exportation without modification of counterfeit trademark goods is not permitted under any circumstances.

Council Regulation (EC) No. 3295/94 of 22 December 1994.

This matter is fully dealt with under the Spanish legal system, and our legislation is thus absolutely consistent with Article 45.2 of the TRIPS Agreement. To answer this question a distinction must be drawn between civil and criminal proceedings. (a) Civil proceedings In general, the Spanish Law on Civil Procedure lays down (Article 523) that first instance costs in declaratory judgements are payable by the party whose claims have been totally rejected, unless the judge decides after due consideration that exceptional circumstances make such payment unjustifiable. If the defendant agrees to the application before answering it, costs will not be imposed unless the judge after due consideration decides that the defendant has acted in bad faith. Costs may also be imposed at second instance after an appeal (Articles 850, 875 and 896), and even at Supreme Court level following a special appeal for annulment. The judgement confirming the decision appealed against will order costs to be paid by the appellant, unless the court after due consideration decides that some other ruling is justified by exceptional circumstances. In appeals for annulment, the appellant will have to pay the costs if the judgement decides against a review of the challenged ruling on the grounds that none of the reasons put forward is legitimate. Costs include lawyers' fees (Article 423) as well as the fees of experts and other officials, whether subject to a tariff or not. Lawyers must submit an itemized breakdown of expenses. On this basis the Clerk of the Court will assess costs (which will not include fees for documents and other proceedings which are of no use, superfluous or not authorised by law, or unitemized entries in bills). (b) Criminal proceedings Here, similar rules apply. Article 239 of the Law on Criminal Procedure stipulates that a decision must be taken about the payment of legal costs in orders or judgements which terminate a lawsuit or any of its phases. Such payment will be ordered against convicted infringers and in accordance with Article 241 will include, inter alia, the fees payable to barristers, solicitors and experts, to be confirmed by itemized bills. Once the cost assessment has been carried out and approved, it is applied by means of a court order as provided in the Law on Civil Procedure. If the convicted party's assets are insufficient to meet all financial liabilities, payment may be split up into instalments and applied according to the order of priority set out in Article 126 of the 1995 Criminal Code, with third place (after compensation of the injured party for the damage caused by the offence and compensation of the state for its expenses) being taken by public and semi-public offences and second place (after compensation of the injured party) being taken by offences which can be taken to law only on the initiative of a party (without the involvement of the Public Prosecutor). In the judgement the judge or court may order the convicted party to pay the costs or expenses occasioned by a private prosecution under the general conditions already set out. The Spanish judicial authorities can therefore order the infringer to pay these expenses incurred by the right holder who is the plaintiff in civil proceedings, or the injured party in criminal proceedings whether he appears in court or not. Regarding the possibility for the judicial authorities of ordering the infringer to pay damages to the holder of the intellectual property right even when the former does not know, or had no reasonable grounds for knowing, that he was guilty of an infringement, the following should be stated: (a) Under Spanish legislation an error of fact or law concerning the perpetration or non perpetration of an infringement of intellectual property rights does not necessarily prevent the infringer from being exempted from civil liability. It is therefore logical that, if the infringer has been unjustly enriched and the legitimate right holder has suffered corresponding harm, an action to compensate the injured party for the harm suffered may be brought. (b) The foregoing is not possible in criminal proceedings in which the civil action or liability goes together with, and is incidental to, criminal liability. Where no intent or punishable negligence exists, the agent cannot be regarded as guilty, and therefore no criminal infringement has occurred. Under such circumstances, civil liability, i.e. compensation for the damage caused, cannot be imposed in the verdict of not guilty delivered at the end of the criminal proceedings. For such compensation to be sought, the appropriate civil actions must be initiated as part of civil proceedings. With regard to specific rules on industrial property, Articles 62 to 71 of Section VII (Proceedings for Infringement of Patents) of Patent Law 11/1986 of 20 March contains detailed rules, which are referred to in Article 8 of Law 11/1988 of 3 May on the legal protection of layout designs (topographies) of semiconductor products. This question is also dealt with in Section IV, Chapter II (Articles 35 to 40), of Trademark Law 32/1998 of 10 November, which is similar in form to the preceding law, and in Article 144 of the Industrial Property Law of 16 May 1902. The legislation described demonstrates that Spanish law gives the judicial authorities the power to order any party infringing industrial property rights to pay all the expenses of the affected right holder, including compensation for damage and legal costs.

To date, Spain has not requested any customs action for wine bearing misleading geographical indications. In any case, such wines would be fully covered by the customs procedure used for other goods in general and described in Spain's replies to the Check-List of Issues on Enforcement.7 The relevant legislation is quoted in the section in that document concerning special requirements relating to border measures.7 Regarding Spanish legislation on the protection of geographical indications, we refer to the legislation under that heading in document IP/N/1/ESP/1/Rev.1.

The adoption of customs measures can indeed be requested in the case of wines bearing misleading geographical indications. The application for, and adoption of, such measures follows the customs procedure applicable to other goods in general and described in Spain's replies to the Check-List of Issues on Enforcement. For the adoption of such measures, an application for action must therefore be submitted.

Yes, generally, international treaties (also these containing detailed provisions addressed to the (judicial) authorities and not to the State itself) are considered as self executing in our system. Article 91 of the Polish Constitution provides as follows: "(1) After promulgation thereof in the Journal of Laws of the Republic of Poland (Dziennik Ustaw), a ratified international agreement shall constitute part of the domestic legal order and shall be apply directly, unless its application depends on enactment of a statute. "(2) An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement cannot be reconciled with the provisions of such statutes. "(3) If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws." In addition, Article 7 of the Polish Act on Copyright and Neighbouring Rights provides that: "Should the international agreements, to which the Republic of Poland is a party, provide for broader protection than envisaged by this Act for unpublished works of Polish citizens or for works published for the first time within the territory of the Republic of Poland or simultaneously within the territory of the Republic of Poland, or for works published for the first time in Polish, the provisions of such agreements shall apply."

The Government of the Republic of Poland will answer this question immediately after completing the process of amendment of the relevant regulation.