Lista de cuestiones sobre la observancia en el marco del párrafo 2 del artículo 63 del Acuerdo sobre los ADPIC - Ver detalles del documento

Moldova, Republic of

a) Procedimientos y recursos judiciales civiles

The Republic of Moldova has a court system in which the competence of tribunals depends on the type of dispute to be considered. Intellectual property rights and disputes are solved depending on particular cases, by the following judicial authorities: - The invention, trademarks/industrial designs, and copyright disputes are examined in first instance in Tribunal and may be appealed against before the Court of Appeals and ultimately to the Supreme Court of the Republic of Moldova. - Disputes not falling under the Tribunal's competence, when the parties are legal persons, are examined in first instance by the Economic Court, where appeals may be submitted to the Economic Appeals Court and ultimately to the Supreme Court of Justice of the Republic of Moldova. In case, one party is a natural person, the dispute will be examined in first instance by the Chisinau Tribunal, whose decisions may be contested in the Court of Appeals. - The decisions which demand the cancellation of an administrative act of the public authorities should be examined in accordance with the Code on Administrative Contraventions, depending on the level of the authorities whose act is subject to appeal. For instance, the decisions of the State Agency for the Protection of Industrial Property (AGEPI) which are submitted in first instance to the Court of Appeals can be contested in the Supreme Court of Justice of the Republic of Moldova. Contesting parties also have the possibility to solve disputes by recourse to the services of the Arbitration and Mediation Center under the auspices of the State Agency for the Protection of Industrial Property (AGEPI).

Persons who registered or confirmed these rights in the Republic of Moldova, have standing to assert intellectual property rights. When a right holder considers that his intellectual property rights have been injured he may initiate a civil, penal or administrative suit in the court. These persons can also be represented in court by representatives, legal persons can be represented by their institution, acting in limits given by law, a statute or regulations. The legislation in force does not stipulate personal appearances before the court by the right holder, in case he is represented. The personal participation of the right holder in the case does not deprive him from the right to be in this case a representative.

Organizations, institutes, enterprises as well as natural persons have the obligation to present evidence which the court orders at the parties’ request. When a party or another participant in the case affirms that the opposing party holds an evidence concerning the case, the court can order its presentation. In case the organization, institution or enterprise where the evidence is kept, refuses to present it, the person in charge found guilty is imposed a fine ranging from 10 to 25 minimum wages. If the evidence is kept by a natural person, the person will be subpoenaed a witness, being obliged to present the requested evidence, under penalty of 10 to 25 minimum wages. The penalty does not exempt official persons and natural persons from the obligation to present the required evidence in court.

The identification attributes and protected confidential information brought forward as evidence are considered the following: - Law on Trade Secrets, Nº 171-XIII enacted on 6 June 1994. By the provisions of this law the court examines, during the proceedings, the stated evidence only to the extent it directly concerns the subject involved and according to its relevance to the case, as formulated by the claimant. While presenting evidence, the legal interests of parties regarding the protection of their commercial and industrial secrets are considered. - Civil Procedural Code adopted on 26 December 1964. Article 541 stipulates that in cases of infringement of the rights of the owner, when the subject matter of a patent is a process for obtaining a product, the judicial authority shall require the defendant to prove that the process to obtain an identical product is different from the patented process. Any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process; if the product obtained by the patented process is new or there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used. In case, evidence of the contrary is presented, the defendant's rights, concerning the protection of his trade and industrial secrets will be ensured.

The remedies that may be ordered by the juridical authorities are: - According to Article 25 of Law Nº 588 of 1995 on Trademarks and Appellations of Origin: In cases of counterfeiting, the person found guilty shall be sentenced to a fine and required to pay the injured party a compensatory monetary sum for violating his rights, including loss of profit and the expenses which include appropriate attorney’s fees. When the case is over, at the request of the injured party, raw material and materials used to fabricate the counterfeiting products shall be, without compensation of any sort, disposed of outside the channels of commerce so as to avoid any prejudices of the owner’s rights. In these cases, the required corrective measures should be measurable with the gravity of the infringement, considering the interests of third parties. Products on hand under a counterfeit trademark or appellation of origin that infringe owner’s rights shall be, without compensation of any sort, disposed of outside the channels of commerce so as to avoid any prejudices of the owner’s rights, and the trademarks and appellations of origin illegally used shall be removed from the products in question, even if this may cause the destruction of these products. The injured party shall be entitled to have the judicial decision published at the cost of the guilty party in order to restore his business reputation. - According to Article 34 of Law Nº 461/1995 on Patents for Inventions, any person who usurps the capacity of inventor, who obtains under constraint the capacity of joint inventor or who discloses the subjects matter of an invention prior to the filing of an application without the consent of the inventor shall be deemed to have infringed the holder’s rights and shall be liable to imprisonment or a fine in conformity with the legislation in force. - According to Article 35 of Law Nº 461/1995 on Patent for Inventions, the person who committed the infringement shall be required to pay damages as compensation for the prejudices incurred including for logs of earning and the expenses which may involve appropriate attorney’s fees. Products infringing owner’s rights shall be, without compensation of any sort, disposed of outside the channels of commerce in such a manner so as to avoid further infringements or destroyed. - According to Article 37(4) of the Law on Copyright and Neighbouring Rights, in cases of infringement the ordinary measures taken by the judicial authority include the confiscation of a work of infringing copies of a work or phonogram and equipment used in the manufacture of infringing copies, considering the infringement character of copyright and neighbouring right. - According to Article 38 (1), (2), (3) of the Law on Copyright and Neighbouring Rights, a holder of exclusive rights, whether copyright or neighbouring rights, may require a person infringing his rights to acknowledge those rights; to restore the situation that existed prior to the infringement of his rights and to cease committing the acts that infringe or are liable to infringe his rights; to pay damages, including damages for loss of earnings; to pay an indemnity, in place of damages or surrender of revenue, of between 10 and 20.000 times the minimum wage. Any person who for gain knowingly infringes copyright or neighbouring rights shall be liable to civil, administrative and criminal sanctions provided by law.

Such information can be requested by: - customs authorities according to their competence; - police authorities, the Prosecutor’s Office in cases of intellectual property infringement; - court, in case a lawsuit is examined; - other authorities expressly provided by law. For example, the State Agency on Copyright, according to the law has the right to control and to inform the right holder about the infringement, so that the right holder can initiate a lawsuit.

In conformity with Article 142 of the Civil Procedure Code, the court or judge can require the claimant to insure through collateral, the compensation of the eventual damages caused to the defendant. After the final decision the redress of damages caused by the issuance of the injunction is permitted. In conformity with Article 306 of the Customs Code, the right holder is obligated to deposit a pledge, which value is equivalent to the value of the suspended goods by the Customs Authorities. The value of the suspended products will be determined in accordance with the accompanying documents. The collateral is considered as assurance for redressing of expenses supported by the Customs Authorities keeping the suspended products, the expenses supported by the transporter, importer, exporter, owner while the products where suspended, the expenses supported by persons whose interests were injured while suspending products because the holder presented false data about the products involved. In case the collateral is not delivered in due time, the decision regarding the suspension of customs procedures is cancelled and the procedures continue.

The proceeding acts are performed in time limits stipulated by law, in case where data on the actual duration of proceedings are not stipulated by law, they are fixed by the court. The time limits of the actual duration of proceedings are established on a certain calendar date, specifying a fact which will take place immediately or in a period of time. The proceedings’ time-limit is established in years, months or days, beginning on the second day after a calendar date or after the fact which took place, and determines its beginning. The prescription term for natural persons is three (3) years and, for legal persons one (1) year from the moment they found out or should have find out that their rights were injured. The time limit for appeal, stipulated in Article 27836 and Article 305 of the Civil Procedural Code, is fifteen (15) days from the date when the decision is pronounced, if the law does not stipulate otherwise. To submit the appeal in cancellation against decisions which are carried out by force a time limit of fifteen (15) days is stipulated from the date the person who appeals was acquainted with the decision but not later than one year from the date the decision became final. The appeal in cancellation is tried during one month from the date the appeal was received. According to Chapter Nº 7 of the Civil Procedural Code the trial expenses are: - the State fee, which is also provided for by the Law on State Fees, Nº 1216-XII of 3 December1992. - other expenses related to the trial. The attorney’s fee can be covered by the State (Article 90 of the Civil Procedural Code) and is regulated also by the Law on Bar Associations Nº 395-XIV of 13 May 1999, according to which, the payment for attorney’s services is decided by the attorney and the client. In Article 84 of the Civil Procedural Code fees for the following proceeding acts are set out: - The complaints against illegal action of the public administration authorities and persons in charge who injured the citizen’s rights: 100% of the minimum wage in the Republic of Moldova - The actions regarding economic decisions appeared after the concluding, modifying or annulment of contracts: 1000% of the minimum salary in the Republic of Moldova. - Legal entities requests to invalidate acts issued by public administration authorities, co-operative and associations authorities, enterprises, institutions, organizations and persons in authority: 1000% of the minimum wage. - Appeals against the decisions of judicial authorities: 75% from the fee paid at the submission of the appeal or other complaints. In the event of patrimonial litigation: 75% of the fee paid initially. - Final Appeals against the decisions of judicial authorities: 50% of the fee paid at the deposition of the action or other requests. In the event of patrimonial litigation: 50% of the fee paid initially. - The appeals in cancellation of the judicial authorities decisions: 25% of the fee at the deposition of the action or other request. In the event of patrimonial litigation: 25% of the fee paid initially.

b) Procedimientos y remedios administrativos

The person who considers that his intellectual property rights were injured, can defend them in the administrative way by submitting an appeal to the Appeals Commission within the State Agency on Industrial Property Protection. During three (3) months, the Appeal’s Commission examines the appeal and issues a decision of satisfying or refusing the claim. The Appeals Commission's decision is subject to appeal during six (6) months in judicial instance.

a) Medidas judiciales

According to Articles 135 and 136 of the Civil Procedural Code the court may, at the request of a participant to the process, order some preserving (insuring) measures. Such preserving measures consist of: (i) seizure of goods that the defender or a third party holds; (ii) prohibition of undertaking some actions; (iii) prohibition of transmitting to and receiving from the defender of some goods or favours liable to, under various obligations; suspending of transactions if the seizure is to be overruled.

Provisional measures are ordered by submitting a request to the court.

Provisional measures are allowed at any stage of the judicial process. Any breach of the restricting orders of the court are subject to penalties ranging from ten (10) to fifty (50) minimum wages. The defender is entitled to compensation of damages caused by the restricting orders. The decisions of the court concerning any preserving measures are subject to appeal. According to Article 142 of the Civil Procedural Code, it is possible to receive a compensation of damages caused by such measures. The restricting order may be overruled at the request of the defendant, if the court did not take any final decision in regards to these measures in a period of thirty-one (31) days from the day of the actual order of such measures.

See the answer to question 8 above.

[Answer 8: The proceeding acts are performed in time limits stipulated by law, in case where data on the actual duration of proceedings are not stipulated by law, they are fixed by the court. The time limits of the actual duration of proceedings are established on a certain calendar date, specifying a fact which will take place immediately or in a period of time. The proceedings’ time-limit is established in years, months or days, beginning on the second day after a calendar date or after the fact which took place, and determines its beginning. The prescription term for natural persons is three (3) years and, for legal persons one (1) year from the moment they found out or should have find out that their rights were injured. The time limit for appeal, stipulated in Article 27836 and Article 305 of the Civil Procedural Code, is fifteen (15) days from the date when the decision is pronounced, if the law does not stipulate otherwise. To submit the appeal in cancellation against decisions which are carried out by force a time limit of fifteen (15) days is stipulated from the date the person who appeals was acquainted with the decision but not later than one year from the date the decision became final. The appeal in cancellation is tried during one month from the date the appeal was received. According to Chapter Nº 7 of the Civil Procedural Code the trial expenses are: - the State fee, which is also provided for by the Law on State Fees, Nº 1216-XII of 3 December1992. - other expenses related to the trial. The attorney’s fee can be covered by the State (Article 90 of the Civil Procedural Code) and is regulated also by the Law on Bar Associations Nº 395-XIV of 13 May 1999, according to which, the payment for attorney’s services is decided by the attorney and the client. In Article 84 of the Civil Procedural Code fees for the following proceeding acts are set out: - The complaints against illegal action of the public administration authorities and persons in charge who injured the citizen’s rights: 100% of the minimum wage in the Republic of Moldova - The actions regarding economic decisions appeared after the concluding, modifying or annulment of contracts: 1000% of the minimum salary in the Republic of Moldova. - Legal entities requests to invalidate acts issued by public administration authorities, co-operative and associations authorities, enterprises, institutions, organizations and persons in authority: 1000% of the minimum wage. - Appeals against the decisions of judicial authorities: 75% from the fee paid at the submission of the appeal or other complaints. In the event of patrimonial litigation: 75% of the fee paid initially. - Final Appeals against the decisions of judicial authorities: 50% of the fee paid at the deposition of the action or other requests. In the event of patrimonial litigation: 50% of the fee paid initially. - The appeals in cancellation of the judicial authorities decisions: 25% of the fee at the deposition of the action or other request. In the event of patrimonial litigation: 25% of the fee paid initially.]

b) Medidas administrativas

See the answer to question 9 above.

[Answer 9: The person who considers that his intellectual property rights were injured, can defend them in the administrative way by submitting an appeal to the Appeals Commission within the State Agency on Industrial Property Protection. During three (3) months, the Appeal’s Commission examines the appeal and issues a decision of satisfying or refusing the claim. The Appeals Commission's decision is subject to appeal during six (6) months in judicial instance.]

Chapter 12 of the Customs Code was elaborated to suit the exact requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights, that are sufficient to meet the insurance requirements at the border, allowing the customs officers to fulfil there obligations, without applying any special provisions. In particular, it is possible to prevent the release into free circulation of the following prohibited goods: (a) goods, including their package, containing an identical trademark with one already registered for similar goods or any sign incapable of distinction from one already registered, which infringe the rights of the owner; (b) any material of the counterfeit goods that contains signs of a registered trademark, weather viewed separately or in combination; (c) packages that contain signs of a registered trademark; (d) pirated goods, representing or including unauthorised copies of works protected by copyright or related rights, designs, whether registered or not, or without permission of the author in a specific country where it is produced, if those copies are infringing. The customs authority does not undertake any intellectual property protecting measures if the goods are carried exclusively in hand bags of travellers, in the quantities prescribed for such persons.

Chapter 12 of the Customs Code, envisages the measures to be applied at the border in cases of intellectual property rights infringement. In cases that the right holder has suspicion of some goods being carried across the border that would infringe his rights, he is entitled to require assistance from the Customs Authorities presenting in addition a written request that consists of: (i) evidence of his right to the object involved; (ii) a list of the meant objects, featuring some object identification signs; (iii) the express request to suspend the customs procedures in relation to the suspected goods; the requested term to be applied for the suspension; the personal identification information. In a period of thirty (30) days from the day of submission, the customs authority is obliged to send a letter of response to the requesting party. In case of acceptance, the request is validated for the entire period it indicates. The provisions of Articles 53, 56 and 57 of the Agreement on Trade-Related Aspects of Intellectual Property Rights are applicable and, according to Art. 306 of the Customs Code the right holder is obliged to submit a collateral to the customs authority which must be equivalent with the value of goods requested for suspension when the following circumstances are present: the goods involved are retained; the notification to the requesting person is made and a final decision in respect to the matter is made by the customs authority. The collateral is thus an insurance that the deriving damages and costs are appropriately compensated in case the request is found, however, unjustified. If the collateral is not submitted in due time, the decision for suspension is annulled an the customs procedures continue. The right holder and the proprietor of the goods involved in suspension will compensate each others losses caused by illegal (ungrounded) actions against one another, on the basis of the court's decision.

The period of granting the suspension can be no longer than the intellectual property right’s validity term. The term begins to flow from the date of submission of the request and can be renewed on the basis of an eventual subsequent request. The fee for customs assistance is introduced in the customs office and depends on the term granted for suspension. In a period of thirty (30) days the customs authority must inform the petitioner on weather accepting or rejecting the request. The fee is established by the Government.

If the customs authority has sufficient information, it can act ex officio in regard to customs procedures and has the right to request all the necessary additional information and support concerning the goods involved, from the right holder. The customs authority immediately informs the right holder on the location and time of suspension of customs procedures concerning the goods involved. The customs authority shall however proceed to customs undertakings (envisaged in Articles 302-306) towards suspected goods if the right holder fails to start legal actions mentioned above in a period of three (3) days from the day of notification (i. e. information and support delivery as requested or submission of collateral).

Article 309 of the Customs Code establishes the measures to be taken in cases of counterfeit or pirated goods, as follows: the destruction under customs supervision can only be ordered by court; forfeiture that would prevent release into free circulation or other infringement to the right holder. The customs authority will not allow the reexport of the counterfeit or pirated goods, nor will it allow any change in the customs state (regime) of the goods.

The conflicts concerning intellectual property rights protection are resolved by the following courts: - First Instance Courts (reminder: only criminal cases, unlike civil cases which are tried in Tribunals); - The Tribunal in order of first appeals; - The Court of Appeals in order of final appeals.

According to the Criminal Code, the procedures and penalties are applied for the following infringements: illegal pretending of being the author, forcing to co-authoring; disclosure of the essence of inventions before applying for a patent or without permission of the author; production, import, export, stocking, offering for sale or actual selling of goods that contain false mentions about the patent, origin or any other false signs capable of deceiving the potential customers; counterfeiting or illegal use of foreign marks; production, warehousing or transportation for the purpose of sale of counterfeit liquors (alcoholic beverages); illegal use of a registered trademark or appellation of origin, as well as using of similar registered signs for identification of products or services or, for the same type of products or services, offer for sale, actual sale or warehousing for the purpose of sale of marked products; use of literature, art or scientific works, including those owned by foreign authors, without any legal permission of the owner or contract, any breach of the contracts for this matter or contrary to the legal norms applied, any other illegal use of works as well as forcing to co-authoring, deliberately destroying of such works or of the original work.

The following authorities are responsible for initiating the criminal proceedings: the authorities that have criminal enquiry subdivision, whether ex officio when specified or mainly in response to the complaints. For instance, if the issue concerns threatening of public health, the authorities are entitled to initiate a criminal procedure even if the complaint is missing. In this case the court will only decide on the public health threatening issue.

Any person that proves to have interest in defending his intellectual property rights.

Imprisonment and monetary fines are applied in the following cases: - illegal pretending of being the author, forcing to co-authoring, disclosing the essence of an invention before applying for a patent (imprisonment of up to two (2) years or a fine of 60 minimum wages and confiscation) – Article 141 of the Criminal Code; - production, import, export, stocking, offer for sale or actual sale of goods containing false statements about the patent, origin and features of the goods, as well as manufacturer’s or distributor’s name, aiming to deceive the public or the competitors (imprisonment of up to two (2) years or a fine of 60 minimum wages and confiscation) – Article 1412 of the Criminal Code; - production, warehousing or transportation for the purpose of sale of counterfeit liquors (imprisonment of up to three (3) years or a fine of up to150 to 500 minimum wages and confiscation) – Article 158 of the Criminal Code; - illegal use of a registered trademark or appellation of origin, as well as using of similar registered signs for identification of products or services or, use of such signs for the same type of products or services, offer for sale, actual sale or warehousing for the purpose of sale of marked products; Monetary fines are applied in the following cases: - use of literature, art or scientific works, including those owned by foreign authors, without any legal permission of the owner or contract, any breach of the contract provisions concerned or contrary to the legal norms applied, any other illegal use of works as well as forcing to co-authoring, deliberately destroying of such works or of the original audio-visual work (up to 60 minimum wages) - Article 141 of the Criminal Code; - counterfeiting of goods, illegal use of a foreign mark (500 to a fine of 1000 minimum wages and confiscation of the counterfeit goods) - Article 158 of the Criminal Code; Seizure, forfeiting and destruction of counterfeit goods as well as means of production or promotion of such goods, is applied in case of illegal use of trademarks and counterfeiting of works of art or phonograms.

The provisions governing the length of criminal proceedings are: Articles 12/1, 84, 308, 329 and 353 of the Criminal Procedural Code. The cases are solved in a reasonable period of time, the criteria being: complexity of the case, behaviour of the parties and criminal enquiry division or court. The Prosecutor’s Office or the higher instance supervises the process in respect to this matter. The term specified for appeal or final appeal is ten (10) days. The costs of proceedings are covered by the convicted person and only some are covered by the State, all based on court’s decisions.