| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
42. Article 52 requires that the competent authorities notify the right holder that his application is accepted within a reasonable time. Please explain within what period of time the competent authority responds to a request for suspension of release of goods and, if the application is accepted, the length of time during which enforcement action will be taken
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
43. Article 53.1 requires that the competent authorities have the authority to secure from an applicant a security or equivalent assurance sufficient to protect a defendant and to prevent abuse. Please verify that the competent authorities identified above are empowered to require security or equivalent assurance and provide citations to the provisions of law or regulation that grant them that authority.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
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| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
44. Article 53.2 provides that the owner, importer, or consignee of goods involving industrial designs, patents, layout designs or undisclosed information that have been suspended by customs authorities should be able, in certain circumstances, to have such goods released on payment of security sufficient to protect the right holder from infringement. Please identify what forms of intellectual property, if any, are subject to provisions of Article 53.2 and cite to the relevant provisions of law or regulations.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
45. Article 54 requires that the importer and the applicant be notified promptly of the suspension or release of goods. Please specify the period within which the competent authority to issue a notice that the release of goods has been suspended.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
46. Article 55 makes it clear that the right holder applying for suspension of infringing goods must initiate a proceeding on the merits in an appropriate forum within a reasonable period of time or the goods will be released. Please identify the fora in which an applicant/party may initiate proceedings on the merits that will allow customs authorities to hold the goods beyond ten working days.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
47. Article 55 provides that a review is to take place within a reasonable time at the request of the defending party to determine if the suspension measures should be modified, revoked or confirmed pending the outcome of the proceeding on the merits. Please identify the forum that is authorized to conduct such a review and describe the procedure and cite the applicable law or regulations.
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Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
48. Article 56 requires that the authorities be able to require the applicant to compensate the defending party for any injury caused if the detention of goods was unfounded. Please identify the authorities that can order the applicant to pay the importer, consignee or owner compensation for injury caused by wrongful detention or through the detention of goods released pursuant to Article 55 and cite to the applicable law or regulations.
|
Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
49. Article 57 requires that the competent authorities be able to authorize the right holder to inspect the detained goods in order to substantiate the claims. Please explain how right holders are provided an opportunity to inspect suspect goods that have been detained by customs authorities.
|
Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
50. Article 57 also requires that, where the decision on the merits favours the right holder, the competent authorities also may be given authority to give the right holder information regarding the importer, consignee or consignor. If competent authorities in Poland can provide information regarding the importer, consignee or consignor to the right holder, please explain how information regarding names and addresses of consignors, importers and consignees and quantities of goods are provided to the applicant after a positive decision of infringement is made, e.g., authorities automatically providing information or by submission of a written request from the right holder, etc. Please cite to the law or regulations providing such authority.
|
Please see the reply to question 1 from Japan.
|
21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
51. Article 58 specifies procedures to be followed where the competent authorities can act ex officio. Please explain whether the competent authorities in Poland are empowered to act ex officio and, if so, please identify the intellectual property areas subject to ex officio action.
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Please see the reply to question 1 from Japan.
|
21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
52. Article 59 identifies the remedies that are to be available, including destruction or disposal of infringing goods outside the stream of commerce. Please explain what the law in Poland permits regarding the disposition of infringing goods, i.e., does the law allow for destruction, disposal or both. Please cite to the law or regulations providing such authority.
|
Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
53. Please identify:
(a) the competent authority that decides the disposition of the goods, i.e., whether the goods will be destroyed or disposed of outside the stream of commerce; and
(b) the competent authority that carries out the destruction or disposal of the goods.
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Please see the reply to question 1 from Japan.
|
21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
54. Article 60 permits Members to exclude from the provisions for border enforcement small quantities of goods of a non commercial nature carried by passengers or sent in small consignments. Please describe what constitutes a de minimis import that is excluded from the border measures under the law of Poland.
|
Please see the reply to question 1 from Japan.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
and penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark counterfeiting and copyright infringement on a commercial scale. Please describe the provisions in the law of Poland that fulfil that obligation and provide legal citations.
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Polish criminal regulations penalizing activity infringing intellectual property rights are contained in the following Acts:
- Act of 4 February 1994 on copyright and related rights (Articles 115, 116, 117 and 118),
- Act of 19 October 1972 on inventive activity (Articles 121, 122 and 123),
- Act of 31 January 1985 on trademarks (Article 57),
- Act of 30 October 1992 on protection of topography of integrated circuits (Articles 42 and 43),
- Act of 16 April 1993 on counteracting unfair competition (Articles 23 - 26)
- Act of 16 August 1987 on cinematography (Article 58),
- Act of 6 June 1997 - Penal Code (Article 278).
Offences as defined by the Polish Penal Law are the following acts against protection of intellectual property rights:
(a) usurpation of authorship of the whole or part of somebody else's work or artistic performance,
(b) dissemination of the work in its original version or in the form of compilation, artistic performance or public deformation of such work without giving the author's surname or pseudonym,
(c) another infringement of somebody else's copyright in order to gain financial benefits,
(d) dissemination without authorization or against its conditions of somebody else's work,
(e) recording or copying without authorization or against its conditions of somebody else's work,
(f) acquisition, assistance in sale, accepting or assistance in concealing, in order to gain financial benefit, carrier of the work, artistic performance, phonogram or videogram disseminated or copied without authorization or against its conditions,
(g) impeding the exercise of copyright to control to use the work or its artistic performance,
(h) usurpation of somebody else's patent or somebody else's utility design in order to gain a protective right,
(i) designation of goods not protected by a patent or utility design in the way inspiring misleading impression as if they used such a protection,
(j) deliberate introduction of such goods to trading, their storage and advertising,
(k) usurpation of authorship of somebody else's topography of integrated circuits,
(l) infringement of the right resulting from registration of topography of integrated circuits in order to gain financial benefits,
(m) introduction to trading of goods and provision of services with the use of a registered trademark,
(n) designation, in order to introduce goods and services to trading, with a registered trademark, without being granted the right to it.
The above-mentioned offences are subject to the following penalties:
- deprivation of liberty for the period up to one year or up to two years according to the type of act,
- restriction of liberty,
- fine.
The culpability of the above-mentioned acts is increased (the upper limit of the penalty of deprivation of liberty is increased up to three years) if the perpetrator has turned it into its permanent source of income, is in charge of such activity or organizes this activity.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
56. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and destruction of infringing goods and any materials and implements the predominant use of which has been the commission of the offence. Please explain the provisions in the law of Poland that provide for such remedies, describe the circumstances in which those remedies would be imposed and provide legal citations.
|
Regardless of the principal penalties indicated above in the answer to question 55, the court rules forfeiture of goods coming from offence, even if they were not property of the perpetrator and forfeiture of goods used to commit the offence, in cases involving usurpation of authorship of work, illegal dissemination of somebody else's work or its deformation, illegal copying of somebody else's work, phonogram or videogram, acquisition, assistance in sale or in concealing of illegally disseminated or copied carrier of work, videogram or phonogram (Article 121 of the Act on Copyright and Neighbouring Rights).
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
57. Article 61 also indicates that Members may provide for criminal procedures and penalties in cases of wilful infringement of other forms of intellectual property. Please describe any provisions in the law of Poland that provide for such procedures and remedies and provide legal citations.
|
In the above-cited Acts wilful offences of infringement of intellectual property rights and committing them on a commercial scale have their qualified forms. Threat of punishment for such offences is higher, compare Articles 116 §§ 1, 2, 3 and 4; 117 §§ 1 and 2; and 118 §§ 1 and 2 of the Act on Copyright and Neighbouring Rights.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
58. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for wilful trademark counterfeiting and copyright piracy. Please explain how the penalties provided under the laws of Poland comply with that obligation.
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The severity and type of penalties provided for in the legal regulations should be sufficient to provide a deterrent for trademark counterfeiting and copyright piracy.
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21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
[Follow-up questions from the US]
1. Please provide statistical information related to civil copyright, trademark, geographical indication, industrial design, patent, integrated circuit layout-design and trade secret enforcement for each of the years 1996 and 1997, including the number of cases filed; injunctions issued; infringing products seized; infringing equipment seized; cases resolved (including settlement); and the amount of damages awarded.
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There are no statistics available either related to civil copyright, trademark, geographical indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement or criminal enforcement in the area of copyright piracy and trademark infringement for the years 1996 and 1997.
|
21/09/1998 |
|
| IP/Q4/POL/1 |
Polonia |
Estados Unidos de América |
2. Please provide statistical information related to criminal enforcement in the area of copyright piracy and trademark infringement for each of the years 1996 and 1997, including the number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including whether the fines were paid and whether the jail term was actually served or was suspended) and any other information establishing that your criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
|
See the reply to follow-up question 1.
|
21/09/1998 |
|
| IP/Q4/ESP/1 |
España |
Estados Unidos de América |
1. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in the courts and cite the legal authorities establishing those procedures.
|
No restrictions exist and there is no specific procedure for a foreign person or party to initiate a procedure for the enforcement of intellectual property rights in Spain. Anyone can initiate the procedure provided certain general requirements are met. Normally the only requirement is to have suitable legal representation and guidance in the form of a solicitor or barrister, except in cases, - for example, the urgent procedure provided for in Articles 136 et seq. of the Intellectual Property Law (LPI, as revised and approved by Royal Legislative Decree 1/1996 of 12 April 1996) - where it is not even necessary to have a solicitor or barrister, all that is needed being a written application for adoption of the measure signed by the interested party or his legal representative. It is consequently sufficient to demonstrate the indispensable standing which will be conferred by ownership of a right protected in Spain, on the assumption of the territorial competence of Spanish courts and the applicability of their jurisdiction.
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21/09/1998 |
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