According to provisions of §1 of the Czech Law No. 159/1973 Coll. of L., on Protection of Appellations of Origin of Products, appellation of origin of products means a geographical name of country, region or locality which has come to be generally known to designate a product originating therein the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural or human factors. This definition complies with criteria stated in Article 22.1 of the TRIPS Agreement, because it contains identical conceptual characters. In both cases it is an indication which shall bear the name of a country or its region or locality which serves as an indication of a product originating in this region, locality or country and which is characterized by features, quality, reputation or other characteristics which are essentially attributable to this geographical origin. The Czech definition specifies in more detail this fact when it explicitly refers to human and natural factors.

Present legislation of the Czech Republic enables to ensure additional protection for geographical indications for wines and spirits according to Article 23 of the TRIPS Agreement. The basis for such protection is provided by the Law on Protection of Appellations of Origin of Products (the Law No. 159/1973 Coll. of L.) and a new Czech Trademark Law (the Law No. 137/1995 Coll. of L.). According to the Law on Protection of Appellations of Origin of Products this protection is provided in the form of registration of appellation of origin into the register of the Industrial Property Office. Nobody is allowed to misuse the registered appellation of origin, in particular to appropriate it or to imitate it, even if the true origin of a product is indicated or even if appellation is used in translated or in altered form, if despite the difference there is a risk of confusion, or even if it is accompanied by expressions such as "kind", "type", "imitation", etc. The registered appellation of origin may not be used as the generic name of a product (§4). Only the registered holder of the rights to use an appellation of origin may use the registered appellation of origin. The registered holder of rights to use an appellation of origin can demand from a respective court body that breach of his rights should be prohibited and that defective status should be removed. The valid Czech Trademark Law excludes from registration a sign which consists exclusively of indications of geographical origin of products. In addition, indications which may confuse the public about geographical origin of products or services are excluded from the registration. The law further enables to exclude from registration all indications whose utilization would be contrary to the commitments arising for the Czech Republic from international agreements. According to provision of §3, paragraph 1 of the Czech law, the Office shall not register the indication identical with a trademark which is applied or registered for another owner for identical or similar goods or services with previous right of priority, event. which contains elements of applied indication or registered trademark which could lead to confusion. The Office shall cancel the trademark from the person's proposal or ex officio that the trademark was registered in conflict with this law. The Czech Republic provides legal means preventing the use of the geographical indication identifying wines or spirits for wines and spirits which do not come from the locality stated in a respective geographical indication as well as through protection against unfair competition, by special factual basis of deceptive labelling of goods (§46 of the Law No. 513/1991 Coll. of L.).

Protection of textile designs in the Czech Republic is ensured by valid legal regulation of industrial designs which is contained in the second part in §§36-62 of the Law No. 527/1990 Coll. of L., on Inventions, Industrial Designs and Rationalization Proposals. Protection of textile designs is provided under the same conditions which apply to protection of all industrial designs. The law has no special provisions relating exclusively to textile designs. The industrial design must satisfy the condition of novelty and industrial applicability. An applied industrial design is submitted to examination by the Industrial Property Office. The protection shall result from the registration of industrial design in the register of industrial designs at the Industrial Property Office. The Office shall publish a notice of the registration of an industrial design in the Official Bulletin. The possibility to obtain protection of textile design as another appearance of a product is not tied to any conditions which would burden the applicant. If a textile design is an author's work, it is also under protection according to copyright in the Czech Republic.

The valid legal regulation of industrial designs in the Czech Republic enables the industrial design owner to gradually obtain available protection of industrial design for up to 15 years, i.e. five years more than required by Article 26.3 of the TRIPS Agreement. The Industrial Property Office shall automatically extend the original five-year period of industrial design registration if so requested by the owner. The Office cannot refuse this extension and there are no reasons for refusal of such extension. Czech bodies are not fully convinced that this regulation is in discrepancy with the stated Article of the TRIPS Agreement. On the contrary, they suppose that this regulation is wider than Article 26.3 of the TRIPS Agreement. Authentic Czech wording of the stated provision of §54, paragraph 2 of the Law No. 527/1990 Coll. of L. corresponds to expression "shall be" instead of "may be".

According to provisions of §1 of the Czech Law No. 159/1973 Coll. of L., on Protection of Appellations of Origin of Products, appellation of origin of products means a geographical name of a country, region or locality which has come to be generally known to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural or human factors. This definition complies with criteria stated in Article 22.1 of the TRIPS Agreement, because it contains identical conceptual characters. In both cases it is an indication which shall bear the name of a country or its region or locality which serves as an indication of a product originating in this region, locality or country and which is characterized by features, quality, reputation or other characteristics which are essentially attributable to this geographical origin. The Czech definition specifies in more detail this fact when it explicitly refers to human and natural factors.

Section 34(1) of the German Trademark Law provides: "Claiming priority of a previous foreign application shall be governed by the provisions of the international agreements subject to the proviso that priority under the Paris Convention may also be claimed for services." The German Government holds that the TRIPS Agreement can be considered as an "international agreement" in the sense of this provision. Article 2 of the TRIPS Agreement incorporates among others Article 4A of the Paris Convention, thereby extending its applicability to all WTO Members. Therefore, a right of priority is granted to applications filed in any other WTO Member State, even if this State is not a member of the Paris Union and avails itself of a transitional period under Article 65 of the TRIPS Agreement. It should be noted, however, that the final authority to interpret Section 34 of the German Trademark Law lies with the competent Courts of Justice.

Yes. Article 4 of the Paris Convention is incorporated into the TRIPS Agreement by virtue of Article 2.1. It is therefore our understanding that it is our obligation under the TRIPS Agreement to recognize a right of priority for trademarks filed first in any other WTO Member.

There are no restrictions in German law regarding the nature of the goods or services to which a trademark is to be applied. Section 8 of the German Law on the Protection of Trademarks and Other Signs (Trademark Law) lists the "absolute grounds" for refusing registration of a trademark without in any way referring to the nature of the goods or services to which a trademark is to be applied.

Section 9 of the German Trademark Law deals with filed or registered trademarks as "relative grounds for refusal". According to sub-section 1 of that provision: "(1) Registration of a trademark may be cancelled: 1.if it is identical with an earlier filed or registered trademark, and the goods or services for which the trademark is registered are identical with the goods or services for which the earlier trademark is filed or is registered." Likelihood of confusion is no prerequisite for cancelling the registration of a trademark which is identical with an earlier filed or registered trademark and which is used on identical goods or services. The mere identity of the trademark and the goods or services on which it is used suffices for granting protection. Section 14 of the German Trademark Law applies the same standard of protection to the definition of the exclusive right of the proprietor of a trademark. According to sub-section 2: "(2)Third parties shall be prohibited from using in the course of trade, without consent of the proprietor of the trademark, 1.any sign which is identical with the trademark in relation to goods or services which are identical with those for which the trademark is protected; ..." In case of infringement of his right, the trademark owner is granted injunctive relief and has the right to claim damages. Section 14, sub-sections (5) and (6) of the German Trademark Law provide: "(5)Any person who uses a sign in breach of sub-sections (2) to (4) may be sued by the proprietor of the trademark to enjoin such use. (6)Any person who undertakes such infringing action intentionally or negligently shall be liable for compensation to the proprietor of the trademark for damage suffered therefrom." Likelihood of confusion is no prerequisite for the protection of trademarks against identical trademarks being used on identical goods. Therefore, German law grants even more extensive protection than the TRIPS Agreement in this case.

The German Trademark Law does not provide a standard to determine whether a mark is well-known, but refers instead in Section 4 to Article 6bis of the Paris Convention for the Protection of Industrial Property (Paris Convention): "Trademark protection shall accrue ... 3.by notoriety as a trademark within the meaning of Article 6bis of the Paris Convention for the Protection of Industrial Property (Paris Convention)." German trademark law follows Article 16.2 of the TRIPS Agreement in using a purely quantitative approach to determine whether a mark is "well-known": the mark has to be generally known in the relevant sector of the public in Germany. It is irrelevant how the mark became "well-known" in Germany. Knowledge that was obtained as a result of the promotion of the mark can, therefore, be considered as relevant. A mark does not actually have to be used in Germany in order to be considered as "well-known" in the sense of Article 6bis of the Paris Convention (Comp. the explanatory memorandum to the Trademark Law, Bundestags Drucksache 12/6581, p. 66).

When applying a "purely quantitative" approach to determine whether a mark is well-known, the only relevant factor is the extent to which the relevant sector of the public in Germany has knowledge of the mark. The German Trademark Law does not provide a criterion concerning the required percentage (e.g., half or three quarters) of the relevant sector having knowledge of the mark. This determination is left to the competent judicial and administrative authorities who will take into account all circumstances relevant to the case, such as the distinctive character of the mark, the degree of notoriety of other marks in the same sector of the market, and whether the product for which the mark is used is of special interest to the relevant sector of the public. These authorities can also use opinion polls in order to determine the percentage of the population who have knowledge of the mark.

Attached is a copy of page 66 of the explanatory memorandum referred to in the answer to initial question 3. If the US so wishes, we can provide a complete copy of the explanatory memorandum (in German) after the meeting. The relevant paragraph of page 66 can be translated as follows: "According to the system of the new Trademark Law, well-known marks do not automatically fall under Section 4, No. 2 (marks that have acquired secondary meaning). Section 4, No. 2 requires use "in the course of trade" which signifies here as well as in following provisions (e.g., Section 14) always the domestic course of trade. Whereas for protection of a mark under Section 4, No. 3 "notoriety" suffices, which can also exist without domestic use. This is also in conformity with Article 6bis of the Paris Convention."

Until now, there are no judicial decisions dealing with this question. The explanatory memorandum to the German Trademark Law (Bundestags-Drucksache 12/6581, p. 84) explicitly mentions the case of pharmaceutical products for which the trademark cannot be used during the process of admission. According to Section 11, No. 4 of the former German Trademark Law "Warenzeichengesetz", non-use of a trademark could be excused if the trademark-owner could "not reasonably be expected" to use his trademark. This exception applied to circumstances in which use of the trademark was prevented by circumstances which the trademark-owner could not control, e.g. strike or administrative measures (Busse/Starck, Warenzeichengesetz, 6.ed, 1990, §11, No. 26). Such circumstances will also constitute "proper reasons" in the sense of Section 26(1) of the Trademark Law.

According to Section 14, sub-section (2) of the German Trademark Law: "(2)Third parties shall be prohibited from using in the course of trade, without the consent of the proprietor of the trademark, ... 3.Any sign which is identical with or similar to the trademark in relation to goods or services which are not similar to those for which the trademark is protected; where the trademark has a reputation in the Federal Republic of Germany and where the use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of such trademark." This provision protects trademarks against unauthorized use with respect to dissimilar goods or services ("extended protection"), provided they have "a reputation in the Federal Republic of Germany". Registration is no prerequisite for granting extended protection. In this respect the German provision is less restrictive than Article 16.3 of the TRIPS Agreement. Well-known marks are not explicitly mentioned in Section 14(2) of the German Trademark Law. However, it follows from Section 4, No. 3 of the Trademark Law that they enjoy the same level of protection as the other types of trademarks mentioned in Section 4, Nos. 1 and 2. Therefore, well-known marks are protected under Section 14(2), No. 3 of the Trademark Law if they meet its prerequisites. Firstly, the mark has to have a reputation in Germany. Although this implies a qualitative element, whereas the notoriety of a well-known mark is established by virtue of a purely quantitative standard, well-known marks will generally, if not always, have a reputation in Germany. Secondly, such marks are granted protection only under special conditions. The German Trademark Law mentions in Section 14(2), No. 3 the taking of unfair advantage of the distinctive character or the repute of the mark and the causing of detriment to the distinctive character or the repute of the earlier mark. This is consistent with Article 16.3 of the TRIPS Agreement, which grants extended protection only if the use of a well-known trademark for dissimilar goods or services would indicate a connection between those goods or services and the owner of the well-known mark, and if the interests of the owner are likely to be damaged by such use. The cases covered by Article 16.3 of the TRIPS Agreement are also covered by Section 14(2), No. 3 of the German Trademark Law, since such use could either be considered as the unfair taking advantage of the distinctive character or repute of a well-known trademark or as being generally detrimental to it.

Under Section 8(2), No. 2 of the German Trademark Law, the registration of a mark consisting solely of signs or indications which can serve in the course of trade to identify geographical origin is as a rule not allowed. Section 8(2) does not distinguish between geographical indications for wines and spirits and those for other goods or services. Nor is it the case that Section 8(2) makes any reference to whether the products described really do have the origin stated. Section 8(2), No. 2 does not apply where the registered mark has, before the date of the decision on registration and following the use which has been made of it, established itself in affected trade circles as the distinguishing sign for the goods or services for which it has been filed (Section 8(3)). In derogation from Section 8(2), No. 2, collective marks can be registered even if they consist of signs or indications which may serve, in trade, to designate the geographical origin of the goods or services (Section 99, Trademark Law). Under Section 8(2), No. 4, excluded from registration are those marks which are such as might mislead the public as to geographical origin. Marks including a geographical provenance where the origin thus indicated is wrong, might possibly mislead the public and will, therefore, mostly be denied registration. Finally, pursuant to Section 8(2), No. 9, also excluded from registration are those marks whose use can clearly be prohibited in the public interest under other provisions. "Other provisions" include the relevant EC provisions on wines and spirits which are directly applicable in Germany. Thus, the protection of geographical indications for wine is covered by Article 72a of EEC Council Regulation (EEC) 822/87 on the organization of the common market for wine; Article 10a of the Council Regulation (EEC) 1601/91 contains a similar provision for aromatized wines; and Article 11a of Council Regulation (EEC) 1576/89 for spirits.

In addition to what was mentioned in the previous answer, geographical indications of origin are protected in Germany under Sections 126 ff. of the Trademark Law. Section 127 stipulated that geographical designations of origin may not be used for goods or services not originating from the area indicated by the geographical provenance where there is a danger of people being misled as to the geographical origin. This provision is supplemented by Section 3 of the Unfair Competition Act (Gesetzgegen den unlauteren Wettbewerb) and Section 17(1), No. 5 of the Act on foodstuffs and articles of daily use (Labensmittelund Bedarfsgegenstandegesetz), which forbid misleading designations. As regards the bringing of claims, Section 128 of the German Trade Mark Law refers to Section 13(2) of the Unfair Competition Act. Claims seeking an injunction can be lodged by persons engaged in a trade or business (Gewerbetreibende); what are known as "competition associations" (Wettbewerbsverbände); consumer associations; and chambers of industry and commerce. Section 128(2) of the Trademark Law provides a basis for claims for compensation.

Section 132 of the German Trademark Law merely stipulates that objections raised under Article 7(3) of Council Regulation (EEC) 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs should be submitted to the German Patent Office. Section 132, thus, simply renders more concrete Article 7(3) which provides to the effect that objections should be submitted "to the competent authority of the member state". Where designations are protected under Regulation 2081/92, Article 14 of that Regulation lays down that a mark, which has been registered in good faith prior to the application for registration of the designations, and which falls into one of the categories set out in Article 13, may continue to be used on certain conditions. With regard to German law, conflicts between protected geographical indications and trademarks existing prior to the entry into force of the WTO Agreement are hardly imaginable. As already pointed out, German law generally denies registration of marks consisting exclusively of geographical indications. According to Section 8(3) of the Trademark Law, a trademark can be registered contrary to Section 8(2), No. 2 where, prior to the decision on registration, and as a result of its use for the goods or services for which it was filed, that trademark has established itself in the relevant trade circles. Article 99 of the Trademark Law contains another exception to Section 8(2), No. 2. Since the German Trademark Law is based on the principle of priority (compare Section 9 of the Trademark Law), even in these cases a trademark which was registered earlier will prevail.

(a)(i)German law provides sui generis protection for designs. Designs and models are protected by the Law Concerning Copyright in Designs and Models (Design Patents Act) ("Geschmacksmustergesetz") of 11 January 1876, as last amended by the Law of 25 October 1994 (Federal Law Gazette I, p. 3082). (ii)Protection is also enjoyed by designs and models as works of applied art under the Law Dealing with Copyright and Related Rights (Section 2(1), No. 4 of the Copyright Act ("Urheberrechtsgesetz"). The latter copyright protection, however, requires a higher artistic level than is the case with design patent protection. (b)The first part of this question calls for a description of the pre requisites as regards acquiring protection for industrial designs. The following remarks take as their point of reference the statutory requirements, whilst at the same time reflecting the principles developed in the course of adjudication: (i)Section 1(1) of the Design Patents Act ("Geschmacksmustergesetz") stipulates that industrial designs or models can be protected. A design is the two-dimensional representation in colour or form of a product, a model is the three-dimensional (plastic) representation of a product. The subject of a design patent can be any industrially usable design or model intended or likely to affect the sense of form or colour and to stimulate via the eye the aesthetic sense of the observer. "Industrial" for the purposes of Section 1(1) of the Design Patents Act means that protection can only be granted to designs or models which can be produced or disseminated by a particular trade or industry. (ii)Section 1(2) of the Design Patents Act makes it a pre requisite that protection as a design or model can only be granted to products which are new and have a special characteristic. Newness A design is new within the meaning of Section 1(2) of the Design Patents Act where, at the time of filing, the artistic elements establishing its special character ("Eigentümlichkeit") were neither known nor could be known to the domestic specialist circles (what is known as the objective relative concept of newness). This newness concept has not been precisely determined in geographical terms - that is to say, it cannot be generally stipulated within which geographical boundaries the domestic specialists should examine the existing range of designs. The question of the countries on which to base the examination must be the subject of a separate decision for each individual specialist domain. As a rule, existing forms or creations which have long been forgotten will not detract from the quality of newness. Special Characteristics A design has a special character when the features determining its aesthetic effect appear as the result of a person's own creative working of form or colour which goes beyond the average ability of a designer who works in the specialist area in question. These requirements must not be set too high. It suffices for the design or model to surpass the mere workmanlike. The examination of the special character is based on a comparison of the aesthetic criteria determining the overall impression with the previously known range of forms (Article 25.1, second sentence of the TRIPS Agreement). The previously known range of forms includes the totality of all available forms. The following description of the filing procedure is not exhaustive. The essential point is that, in the registration procedure before the German Patent Office, there is no material examination of the filed design in respect of newness and special character (on this see also the reply to question 9(e)): (i)Under Section 7(1) of the Design Patents Act and Sections 3 and 4 of the Statutory Order on Applications for Designs and Typographical Characters ("Musteranmeldeverordnung"), a requirement for the acquisition of a design patent is the filing of an application to have the design entered in the designs register of the German Patent Office. (ii)Under Section 7(3) of the Design Patents Act, filing requires a written application for entry and a representation of the design (photograph or graphic depiction). Exceptionally, under Section 7(4) of the Design Patents Act, the representation can also be in the form of a piece of the design in question (textile, wallpaper). (iii)Pursuant to Section 8c(1) of the Design Patents Act, a fee has to be paid for filing. The amount is laid down in the Act to regulate the fees of the Patent Office and the Patent Court of 18 August 1976, as last amended by Article 4 of the Act of 18 July 1996 (Federal Law Gazette I, p. 1014). This fee is DM 100. (iv)Further requirements in respect of filing are set out in the Statutory Order on Appplications for Designs and Typographic Characters, as last amended by the Statutory Order of 13 August 1993 (Federal Law Gazette I, p. 1056) (name of the person filing or his representative, description of the object, stating of the class of goods). (v)The time of filing depends on when it is received by the German Patent Office. Under Section 7b of the Design Patents Act, the person filing can claim the priority of a previous filing abroad of the same design or model. (vi)Where it meets the prescribed requirements, the filing is entered in the designs register. Section 8(2) of the Design Patents Act provides that the entry of the filing in the designs register shall be published in the Designs Gazette "(Geschmacksmusterblatt"). (vii)Section 8b(1) of the Design Patents Act stipulates that an application can be made to have the publication postponed for a period of 18 months. (c)The right accruing under a design patent is an exclusive one operating in respect of all persons. Violation of this exclusive right is deemed to have occurred whenever the design is copied. Unauthorized reproduction within the meaning of Section 5 of the Design Patents Act presupposes knowledge of the subject of the protected design. Under Section 5, first sentence, the right owner (copyright holder) can forbid the production of any copy without his consent, where this is done with intent to disseminate the copy. Under Section 9(1) of the Design Patents Act, protection lasts five years. Protection commences on the day following filing. Section 9(2) lays down that the period of protection can be extended by five years in each instance or a multiple of that up to a maximum of 20 years. (d)In the case of a violation of the design patent - in other words, where there has been any production of dissemination of a copy of the design without the consent of the rightholder the copyright owner, under Section 14a(1), first sentence of the Design Patents Act, may require from the person infringing the right: (i)the removal of the impairment; (ii) forbearance, where there is a danger of repetition; (iii)compensation or the surrender of the profits and the submission of a bill detailing the profits, where the infringer of the right has acted with intent or negligently. Section 14a(3) of the Design Patents Act, inserted on 1 July 1990 by the Product Piracy Act, read in conjunction with the provisions of the Copyright Act there cited, stipulated that, where his right has been infringed, the copyright holder can additionally bring the following claims against the infringer: (i)destruction of the products of the copying and of the equipment used for such copying; (ii)information as to the origin and sales outlets of the products of copying; (iii)publication of the judgement against the infringer. The claim to information should be brought against the infringer independently of the issue of fault. It can also be asserted by means of a temporary injunction where the violation is obvious. Section 14a(3) of the Design Patents Act also makes it possible for the design or model copyright holder to request the seizure of the products of copying at the border by the customs authorities, where it is not possible to apply for seizure at the border under EC Council Regulation No. 3295/94 of 22 December 1994 on measures to prohibit the introduction of imitated goods and unauthorized copies into duty-free traffic or non-levying proceedings and to prohibit their exportation and re-exportation (EC Official Journal, No. L 341, p. 8). These instruments enable the holder of patents in respect of textile designs, in particular, to make effective enforcement of his rights. (e) Exceptions to design patent protection and the assertion of design patent rights: (i)Excluded from protection as designs are, as a result of court rulings, the manifestations of all such products which depend solely on their technical function (Article 25.1, third sentence of the TRIPS Agreement). (ii)Under Section 7(2), protection against copying cannot be acquired where the publication of the design or model or the dissemination of the copy would violate ordre public or bonos mores. This examination, done under Section 7(2) of the Design Patents Act, is the only examination carried out by the German Patent Office to establish protectability. (iii)Pursuant to Section 6(1) of the Design Patents Act, the copying of the product is not prohibited where what is being made is a single copy of the design or model, so long as this is done without intent of commercial dissemination - that is for private use. (iv)Under Section 5, No. 2, the inclusion of copies of individual designs or models in works of writing is permissible.

Textile designs can be protected as follows under our legal system: (a)By the Design Patents Act, insofar as the textile designs are filed as designs in accordance with the procedure described in the answer to question 9(b) above. (b)Under Section 1 of the Law against Unfair Competition , such designs or models of a fashion creation as can be deemed to have a competitive special characteristic meriting protection can be protected for the duration of a fashion season, as a rule six months. A "competitive special characteristic" will also be present where the copyright holder has recourse to what is essentially already known, but where this occurs for the first time in the fashion season in question and the recourse in that season to something already known is felt to be a special fashion innovation. (c)Pursuant to Section 2(1), No. 4 of the Copyright Act, fashion creations can be copyrighted where they can be counted among works of applied art.

Article 25(1) of the Slovenian Law on Industrial Property (LIP) reads as follows: "Geographical names of products whose distinctive properties are mainly due to the location or region where they are produced, if such properties are a natural consequence of either the climate or soil or of established manufacturing procedures or processes, shall be protected by appellations of origin." The notion "distinctive properties" has a general meaning and thus includes quality, reputation or any other characteristic of a good which is essentially attributable to its geographical origin. Therefore, the Slovenian Law on Industrial Property complies with Article 22 of the TRIPS Agreement.