The cost of the custom procedure is included in the amount of the security. The amount of the security shall be 5% of the value of the customs goods if their value can be established. If their value cannot be established, the security shall be a monthly Ft 60 000 for each application. If the amount of the security does not cover the costs, the entitled person must pay the difference.

In these cases the said proceeding shall be a complaint lodged to the competent court. The complaint shall contain a petition for an appropriate provisional measure. In court proceedings concerning trademark infringement the Metropolitan Court has jurisdiction and exclusive competence. According to the provisions of the new Trademark Act, in infringement proceedings, where a party has presented reasonably available evidence sufficient to support its claims, the judge may order at the request of the opposing party the party to produce documents and other evidence which are within its control. The court may subject the ordering of preliminary production of evidence to providing security. Similar provisions have been included in other industrial property legislation and in the Copyright Act by the new Trademark Act. Law No. III of 1952 on Civil Procedure contains the rules of provisional measures applicable in intellectual property right infringement cases as well. According to the last amendment of the Code of Civil Procedure the court may order by a provisional measure, on request, compliance with the claim for action (counterclaim) or with the request for a provisional measure if it is necessary to avert imminent damage, or to maintain unchanged circumstances giving rise to litigation or to protect the petitioner's, rights deserving special appreciation and if the drawbacks caused by the measure do not outweigh the benefits attainable by it. The court may subject the ordering of provisional measures to providing security. The facts on which the request is based must be made likely. The request for a provisional measure cannot be submitted before filing the statement of claim, however, the court may decide on the provisional measure before the first hearing. The court decides on the provisional measure out of turn, but prior to that it hears the parties personally or allows them to reply to the request in writing. The hearing of the parties may only be omitted in case of urgent need or if the party does not comply with the time-limit or period fixed for the hearing. Although it is possible to lodge an appeal against the decision on the provisional measure, this measure may be executed in advance. Special provision on provisional measures applicable in the case of infringement have been included in our industrial property and copyright legislation by the new Trademark Act. According to them in intellectual property litigation, it will be sufficient for courts to assume that a provisional measure is necessary to protect the petitioner's rights deserving special appreciation if evidence is provided that the applicant is the right holder or otherwise entitled to act in the procedure and that the legal protection exists. These provisions shall not be applied where six months have already elapsed from the beginning of trademark infringement or 60 days from the date on which the petitioner became aware of the infringement and of the identity of the infringer. The court shall decide on the provisional measures out of turn, however, not later than within 15 days from the filing of a request to this effect. In a proceeding for intellectual property right infringement, the court may subject ordering of preliminary production of evidence to providing security.

The customs authority shall proceed in relation to the illegal (infringing) goods in accordance with the decision of the court which rules a provisional measure, to be taken. The customs authority shall implement the customs clearance of the customs goods in accordance with the provisions of the binding decision of the court which ends the procedure.

See the reply to question 11.

See the reply to question 11.

We have no special provisions for the responsibility of the competent authorities prescribed in the above questions. Under Article 349 of the Civil Code, liability for damage caused in the sphere of state administration shall be established only if the damage could not be prevented by ordinary legal remedies. These rules shall also apply to liability for damages caused within the sphere of authority of courts and prosecutors offices.

The customs authority, observing the provisions on the protection of data, has to provide information, at the request of the right holder, on the person applying for the customs clearance, on the name and the address of the consignee of the customs goods, and it also has to ensure that the right holder may observe and examine the customs goods in order that the right holder can exercise his rights. For the purpose of accelerating customs proceedings the customs authority may take samples from the custom goods.

The customs authority, observing the provisions on the protection of data, has to provide information, at the request of the right holder (which should be made in writing), on the person applying for the customs clearance, and on the name and address of the consignee of the customs goods. In respect of the protection of personal data, Act No. LXIII of 1992 is also applicable.

There are no special provisions for the procedures of detentions and seizures ordered by the competent authorities based on Article 51 and 55 of the TRIPS Agreement. General provisions of Act No. LIII of 1994 on Execution by Court are applicable.

According to Section 156(6) of the Code of Civil Procedure it is possible to lodge an appeal against the court decision on the provisional measures in 15 days but this measures may be executed in advance. According to the general provisions of Act No. C of 1995 on Customs Law, Customs Proceedings and Customs Administration there is a possibility to appeal against the decision of the customs authority ordering the customs goods requested in the application of the right holder under direct supervision but the order must be enforced at once.

See the reply to question 6.

The customs authority, taking into account the binding decision of the court on the merits of the case, shall account for the amount placed by the entitled person as a security in accordance with the rules of the Act on Customs and Customs Procedure.

The competent authorities may allow re exportation of counterfeit trademark goods which are transit goods and which goods enter the customs territory through non commercial import (de minimis imports). According to Section 1 (7) of Act No. C of 1995 on Customs Law, Customs Proceedings and Customs Administration non commercial traffic is: importation or exportation of customs goods, goods not constituting a commercial quantity, imported by, arriving for, exported or sent out by a natural person, to an individual or total value not exceeding the forint amount defined. Alcoholic beverages: 1 litre of spirits 1 litre of wine 5 litres of beer Tobacco products: 500 cigarettes 100 cigars or 100 grams of tobacco Coffee, tea, cocoa and all spice herbs and their mixtures thereof 1 kilo each except for: seasoning paprika and the mixture thereof. Other goods: up to the value of Ft 500/item 10 per type up to the value of Ft 2 000/item 5 per type up to the value of Ft 5 000/ item 2 per type up to the value of Ft 5 000/item 1 per type Motor vehicle: 1/year/family

Government Decree No. 128/1997 (VII. 14.) Korm. on the measures in the field of customs administration proceedings against the infringements of intellectual property rights (Border Measures Decree) contains the provisions relating to the suspension of the release of goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights. Persons entitled to submit an application are the owner of the trade mark, or the geographical indication, and the holder of the copyright and neighbouring rights, the user of the trade mark entered into the Register of Trademarks, in the case of copyrights and neighbouring rights, the user entitled to use those, and the organization dealing with the common administration of copyrights and neighbouring rights. The customs authority must take a decision on the merits concerning the application within five working days of the date when it was lodged. If a specific application has been lodged to initiate a measure in relation to customs goods which have been submitted for customs clearance, the customs authority must take its decision within five days, taking into account the customs clearance proceeding. The customs authority reject the application, if it has not been submitted by the right holder, if the application does not meet the necessary requirements, or if the right holder does not provide security. On the basis of the accepted application, the customs authority places the customs goods submitted by the person requesting customs clearance under direct customs supervision, and the right holder is forthwith notified thereof. The entitled person must prove within ten working days of receiving the notification that he has taken an action for infringement and has taken legal proceedings for a provisional measure to be taken. This deadline may be prolonged by ten working days in a justified case. The right holder makes a statement that he does not wish to exercise his rights, or has not proven his application for an interim measure as defined in paragraph 5 or if the application for such a measure has been rejected by the court, the customs authority shall forthwith notify the person submitting the goods to customs clearance and following this, the customs goods shall be treated in accordance with the application of this latter person. At the same time it notifies the right holder about putting an end to the direct customs supervision. The customs authority takes measures ex officio, to place the customs goods under direct customs supervision, or shall place the customs goods in a bonded warehouse if it obtains such data through its other proceedings, on the basis of which it is probable that the goods submitted for customs clearance are illegal (infringing) goods. If, in a proceeding initiated by the office, the person of the right holder cannot be established, the customs authority contacts the Hungarian Patent Office in the case of an infringement of trademark or geographical label, or the organization dealing with the common administration of copyrights in the case of an infringement of copyright or neighbouring rights. The Hungarian Patent Office according to the available data shall inform the customs authority of the person of the right holder within five days, or if he does not wish to act against the infringement, the customs authority shall put an end to the direct customs supervision, and proceeds with the customs clearance in accordance with the application of the person submitting the goods. The entitled person must provide a security for the customs authority in order to cover the costs of warehousing the customs goods which are placed under customs supervision on the basis of the customs administration proceeding regulated in this decree, to cover the costs of destroying if the customs goods are to be destroyed, and to cover the possible damages payable to the person submitting the goods for customs clearance.

It is possible to apply for the suspension in respect of goods which involve infringements of trademarks, geographical indications, copyright or neighbouring rights.

A written application by the right holder must contain the following: (a) the verification that the protection of the trade mark, or the geographical indication, or of the copyright or neighbouring rights in question exists in relation to the customs goods; (b) a statement that the person is entitled to act against the infringement; (c) that person's request that the customs authority should take the appropriate measures to place the illegal goods under direct customs supervision; (d) the description and relevant characteristics of the customs goods to facilitate identification, and the circumstances, data, documents which suggest that the infringement is probable; (e) the acknowledgement of the obligation to provide the security which is required by Article 8 of the Decree; (f) in the case of a general application, the period for which the observation is required. The right holder must communicate the following to the customs authority, provided he is aware of them: (a) the place where the customs goods can be found or their place of destination; (b) such detailed data that enable the shipment, consignment or the package to be identified (with special regard to the data concerning the packaging and value of the customs goods and the transport vehicle); (c) the denomination of the importer, exporter or the owner of the customs goods; (d) the expected time and place of arrival or departure of the customs goods; (e) all information concerning the customs goods or those involved which may be of assistance to the customs authority.

Article 27 of the Trademark Act provides for the following remedies (in addition to damages): "(2) The right holder may depending on the circumstances of the case, have recourse to the following civil remedies: (a) request that the fact of infringement be declared by the court; (b) request an injunction that the infringer cease his infringement; (c) demand that the infringer give information on the identity of third persons involved in the production and distribution of the infringing goods and in the supply of infringing services and of their channels of distribution; (d) demand satisfaction from the infringer by way of a declaration or by other appropriate means; if necessary, the declaration shall be made public by the infringer or at his expense; (e) require surrender of enrichment obtained by the infringement of the trademark; (f) request the seizure of the means used exclusively or predominantly for infringement and of the infringing products and the packaging thereof. "(3) The court may rule, at the request of the proprietor, that the infringing nature of the means, materials, products and packaging seized be removed in particular by removing the trademark or, where this is not possible, that they be destroyed. In well founded cases, the court may order, in place of destruction, that the means and materials seized be auctioned according to the rules of court execution procedure; in such case, the court shall decide how the sum obtained is to be used. "(4) Seizure of the means and materials used for trademark infringement and of the infringing products and packaging shall be admissible even though they are not in the ownership of the infringer if the proprietor knew or had reasonable grounds to know of the trademark infringement." As Article 120 of the Trademark Act has amended other intellectual property laws accordingly, the same remedies are available, mutatis mutandis, under Article 52 of the Copyright Act, Article 11 of the Industrial Design Decree, Article 10 of the Act on the Protection of the Topography of Microelectronic Semiconductor Products and Article 35 of the Patent Act.

Under Article 35(2) of the Patent Act the patentee may, in addition to other remedies, claim damages in accordance with the rules of civil liability. Similar provisions can be found in all other intellectual property laws of Hungary. Therefore, Article 355 of the Civil Code is the legal authority determining the factors to be considered in establishing the amount of compensation. It reads as follows: "(1) The person liable for the damage shall restore the original state, and if it is not possible, or if the damaged person does not wish so for a well founded reason, he shall compensate for the pecuniary and non pecuniary damage of the damaged person. "(2) Damage shall be compensated for in cash, unless the circumstances justify compensation in kind. Compensation in kind may be especially justified if the object of compensation for damages is produced by the person causing the damage, too, or it is otherwise at his disposal. "(3) An annuity can also be stipulated as compensation. Usually, annuity shall be ordered if compensation is aimed at the support or supplementing the support of the damaged person or his relative entitled to be supported by him. "(4) Under the title of compensation for damages, the decrease in value of the property of the damaged person and pecuniary advantage lost due to the circumstance having caused the damage, as well as the indemnity or costs necessary for lessening or eliminating the pecuniary and non pecuniary damages sustained by the damaged person shall be compensated for."

Under Article 75 of the Code of Civil Procedure, the costs of proceedings are all costs incurred either in or out of court in relation to the practical and bona fide conducting of a suit by the parties (costs of preliminary inquiries and correspondence, official fees of proceedings, authorization, etc., fees of witnesses and experts, remuneration of interpreters, costs of on the spot trial and inspection, etc.). Disbursements and remuneration of the counsel of a party must also be added to the costs of proceedings. Under Articles 78 and 79 of the Code of Civil Procedure, the defeated party must refund the costs of litigation of the prevailing party. The court determines the amount of costs of litigation taking into consideration the data provided and duly certified by a party. Such costs, in accordance with Article 45.2 of the TRIPS Agreement, include appropriate attorney's fees. An additional provision can be found in Article 95(3) of the Patent Act which provides that the expenses and fees of the patent attorney representing a party are to be added to the costs of proceeding. However, it belongs to the discretionary power of the court, whether the total amount of the invoice of the counsel of the right holder (the total retainer fee stipulated by the right holder and his counsel) will be regarded as a justified expense. Normally, a maximum of 5% of the total amount disputed or in extremely complicated cases 5% + 50% thereof, i.e. 7.5% is awarded as a justified counsel's fee. This calculation is based upon the mandatory rule (Article 1) of the Decree of the Minister of Justice No. 12/1991 (IX. 29.) IM on legal counsels' expenses. It is to be noted that the actual costs (telecommunication, photocopying, travel, accommodation, typing and similar miscellaneous costs) paid in connection with the legal counsel's activity are to be reimbursed on top of the fee on the basis of a detailed account of the said costs to be filed by the legal counsel (Article 2). In practice, Hungarian counsels frequently neglect this obligation, they file no account of costs, i.e. they do not use the possibility to have the actual costs reimbursed on top of their fee.

The extent to which the amount of damages have been taken into account is closely correlated with the economical environment where the infringing activity took place. Since 1 January 1996 damages awarded by the courts are adequate compensation for the injury that the right holder has suffered as set out in the response to question 24. The Hungarian civil procedures are consistent with Article 45 of the TRIPS Agreement.