Examen de la legislación de aplicación del Acuerdo sobre los ADPIC - Búsqueda

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En el párrafo 2 del artículo 63 del Acuerdo sobre los ADPIC, se exige a los Miembros que notifiquen al Consejo de los ADPIC las leyes y los reglamentos hechos efectivos por el Miembro en cuestión y referentes a la materia del Acuerdo, con el fin de ayudar al Consejo en su examen de la aplicación del Acuerdo.

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IP/Q4/SVK/1 República Eslovaca Japón 22. Please explain the remedies which the judicial authorities order regarding copyright and other related rights, patents, industrial designs, trademarks and layout designs (topographies) of integrated circuits, including injunctions, damages, expenses, destruction or other disposal of infringing goods and materials/implements for their production.
In the beginning it might be useful to mention that in the Slovak Republic the judicial system is composed of three levels – three instances. The first instance is represented by district courts courts of general jurisdiction. Then there is the second instance, consisting of county courts that function as appellate courts, and the last resort is represented by the supreme court, whose task is to reach decisions mainly in matters of extraordinary remedies. In some specified cases of commercial and criminal law, county courts act as first instance courts and the role of the appellate court is then passed to the supreme court. Slovak courts and judiciary are fully independent. This means that all the judges are bound only by their consciousness and valid law. The jurist opinion of courts of higher instance is obligatory to courts of lower instance only with respect to a particular case. Despite that, there exists predominantly an informal system of precedence which is customarily applied to all cases, granting that decisions of the supreme court (primarily those generalising and representative) are officially published and widely respected. In appellate proceedings (judicial reviews) the relevant court of higher instance is able either to modify or to confirm the sentence or, if the sentence is found inadequate, to suspend it altogether and remit the case to the respective court of lower instance. The regulations concerning civil procedures are provided for by the Slovak Code of Civil Procedure, Act No. 99/1963, Digest of Laws, in accordance with the wording of later regulations. Requirements that need to be complied with if a party intends to file an action are relatively simple. The party wishing to file an action has only to supply the following information in his or her formal written request: identification of the parties involved in the enforcement procedure to be initiated, the merits of the case, the evidence proposed and the proposal for the court regarding the desirable kind of decision it should reach. Pursuant to Section 80 (b) and (c) of the Slovak Code of Civil Procedure, in filing a legal action the party is able to require the court to decide primarily whether the duty established by the law is complied within a legal relationship or in any violation of the law. The court could also determine whether there is any legal relationship or right at all given that there is an urgent valuable interest concerning this question. A party to an enforcement proceeding is thus entitled to ask the court to reach a decision in any of the ways corresponding to all the relevant criteria cited. In practice this means that courts decide on matters of damage payments, of adequate compensation for a non proprietary injury, which may also come in the form of financial compensation. Courts are authorised to order or forbid certain actions. Courts also decide on the existence or non existence of a right or legal relationship, given that there is a valuable interest concerning such a decision. Representation of a party by his or her counsel is not mandatory in trial proceedings, and legal fees account for 4% of the recoverable debt, the maximum amount being set as Sk 100 000, in commercial cases as Sk 500 000. There are several situations in which county courts function as first instance courts, namely in the following cases: enforcement of tradename rights, trademark rights and label of origin rights, then in matters of legal relationship concerning competition protection, unfair competition, patent rights, protected layout-designs and industrial designs and topography of semiconductor products as a subject of trade. The same applies to relationships resulting from copyright and related rights. In such cases the supreme court functions as an appellate court. Formal requirements necessary for appealing against a sentence are more or less identical with those of filing an action. The structure of courts and their interrelationships are established by the Act on Courts and Judiciary No. 335/1991, Digest of Laws, in accordance with the wording of later regulations. The jurisdiction of courts concerning cases and localities as well as functions is established by the already cited Slovak Code of Civil Procedure. In the field of patent protection, there is the central administrative authority the Slovak Industrial Property Office ("SIPO"), which keeps the registers of separate subjects of industrial property, makes decisions regarding the entry or the cancellation in the registers, the annulment of the patent in the registers, changes in registers and the relevant agenda. The decision of SIPO can be, after all proper remedies of administrative proceedings have been exhausted, submitted to a court, if there is a formal request, and the court will review the decision’s legality. Decisions of SIPO can be reviewed by the supreme court. Aside from all the standard procedures of legal proceedings, in enforcement of rights, if there is a case of emergency, a request can be applied to obtain preliminary measures, pursuant to Section 74 and the following provisions of the Slovak Code of Civil Procedure. Pursuant to Section 76, paragraph 1, letters d), e) and f), through preliminary measures the court is authorised primarily to order a party to pay a security or to deposit an object in court, to do something, to abstain from something, or to bear something, or the court is able to forbid a party to use certain things or rights. Preliminary measures represent from a procedural point of view a considerably simplified and rapid action, allowing the court to omit hearing the parties in person, but on the other hand binding it to reach a decision within the set period of one month, starting from the day the respective action has been filed. Preliminary measures can be enforced immediately, regardless of any contingent appeal against them, however, their effect is limited temporarily and also by their content, since they should not substitute a proper decision on the merits of the case and their effect is in principle bound to filing a proper legal action subsequently, within a proper time period determined by the court. As soon as a proper decision on the merits of the case is reached, the effect of the preliminary measures ceases by law. Otherwise it can cease when the time period determined by the court is over, or if the party does not comply with his or her obligation and fails to file a proper legal action regarding the case.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Japón 23. Please explain whether the amount of damages which judicial authorities order the person who infringes intellectual property rights to pay the right holder is adequate compensation for the injury the right holder has suffered, and what criteria and the way for calculation to decide the amount for compensation.
Damages payment or adequate compensation for non proprietary injury concerning the subject of industrial property falls within the jurisdiction of county courts. The same applies to copyright and related rights. Damage payment in general is regulated by Section 420 and the following provisions of the Civil Code. Certain specialized laws also relate to this regulation, like for example Section 26 of the Act on Trademarks, which aside from payment of damages also establishes the right to adequate compensation for non proprietary injury, granting that this compensation can also be submitted in the form of financial remuneration. In the case of inventions and industrial designs, the relevant regulations are stated in Section 75 of the Act No. 527/1990, Digest of Laws. Above all the injured party has the obligations to substantiate his or her claim for damage, calculate the payment and state who is responsible for the injury. Here it is necessary to mention that in the Slovak Republic there has been a system of authorised experts functioning for a long time, granting that these experts are called to provide their expert’s opinion in certain specific areas.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Japón 24. Please explain whether the amount of damages which judicial authorities order the person who infringes intellectual property rights to pay the right holder includes investigation expenses and appropriate attorney's fees.
The court will decide on the right to compensation for legal fees along with its decision on the merits. The right to legal fees payment is regulated by Section 137 and following of the Slovak Code of Civil Procedure. Pursuant to Section 142 of the Slovak Code of Civil Procedure, the party with full success in the action, will be granted by the court compensation for all legal fees necessary to enforce the law or to defend the law efficiently against the party who was not successful. In the case of partial success, the court will distribute the payments appropriately or will decide that the parties are not entitled to compensation for legal fees. The successful party is thus able to enforce the right to compensation for all fees that were demonstrably used to gain effective law enforcement or defence, against the opposing party. These fees also include personal expenses, expenses for expert opinions, attorney’s charges, legal fees, and so on. An analogous regulation can be found also in the Act on Administrative Proceedings.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Japón 25. Please describe to what extent the amount of damages have been estimated by courts since 1 January 1996. Please explain whether the amount of damages is adequate compensation for the injury the right holder has suffered, and how such civil procedures are consistent with Article 45 of the TRIPS Agreement.
Damages payment or adequate compensation for non proprietary injury concerning the subject of industrial property falls within the jurisdiction of county courts. The same applies to copyright and related rights. Damage payment in general is regulated by Section 420 and following of the Civil Code. Certain specialized laws also relate to this regulation, like for example Section 26 of the Act on Trademarks, which aside from payment of damages also establishes the right to adequate compensation for non proprietary injury, granting that this compensation can be submitted also in the form of financial remuneration. In the case of inventions and industrial designs, the relevant regulations are stated in Section 75 of Act No. 527/1990, Digest of Laws. Above all the injured party has the obligations to substantiate his or her claim for damage, calculate the payment and state, who is responsible for the injury. Here it is necessary to mention, that in the Slovak Republic there has been a system of authorised experts functioning for a long time, granting that these experts are called to provide their expert’s opinion in certain specific areas. The court will decide on the right to compensation for legal fees along with its decision on the merits. The right to legal fees payment is regulated by Section 137 and following of the Slovak Code of Civil Procedure. Pursuant to Section 142 of the Slovak Code of Civil Procedure, the party with full success in the action, will be granted by the court compensation for all legal fees necessary to enforce the law or to defend the law efficiently against the party who was not successful. In the case of partial success, the court will distribute the payments appropriately or will decide that the parties are not entitled to compensation for legal fees. The successful party is thus able to enforce the right to compensation for all fees that were demonstrably used to gain effective law enforcement or defence, against the opposing party. These also fees include personal expenses, expenses for expert opinions, attorney’s charges, legal fees, and so on. An analogous regulation can be found also in the Act on Administrative Proceedings. The legal regulation does not include the notion of appropriate compensation. Compensation for injury can be established only by means of claim for damage. This, however, is possible only in case the applicant acted unlawfully or contra bonos mores, or in case he or she was engaged in unfair competition involving discrediting, in accordance with the wording of Section 50, the Commercial Code. By discrediting is to be understood any action through which a competitor provides or spreads false information about the situation, products and achievements of another competitor, if the information is able to cause any injury to another competitor. In case the action of the applicant could not be found unlawful or contra bonos mores, the enforcement of compensation would be difficult, since no damage in the legal sense occurred. In this particular case the law of the Slovak Republic does not correspond sufficiently with the TRIPS Agreement. The statistical data on the extent of the damages estimated by courts since 1 January 1996 is not available.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Japón 26. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal cases. Please also explain whether these penalties are consistent with Article 61 of the TRIPS Agreement which requires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.
The required statistical data is not available directly in the Office. The Office has asked the Ministry of Justice and the Central Customs Administration for the provision of the above-mentioned information. In order to answer the question regarding the criminal aspects of intellectual property protection it would be best to quote the concrete provisions of the Code of Criminal Procedure, Sections 150 through 152. Section 150 Infringement of the rights to a trademark, trade name and protected appellation of origin (1) The person who has put on the market products or provided services marked with a mark identical to a trademark, the exclusive right for which belongs to another person, or a sign confusingly similar to this trademark, is punished by imprisonment for the period of one year, or by a monetary fine, or forfeiture of a thing. (2) Equal punishment is imposed on a person who in order to achieve economic benefit: (a) unlawfully uses a trade name or whatever sign confusingly similar with this name, or (b) puts into circulation products unlawfully marked with an appellation of origin to which the exclusive right belongs to another person, or with an appellation of origin confusingly similar. Section 151 Infringement of industrial rights The person who unlawfully infringes the right to a protected invention, industrial design, utility model or topography of semiconductor products is punished by imprisonment for the period of up to three years, or a monetary fine. Section 152 Infringement of copyright (1) The person who unlawfully disposes with a work which is the subject matter of the protection according to the copyright, or with a performance of a performing artist, with a sound or visual recording, with a broadcast or television programme which are the subject matter of the right similar to the copyright, in the manner which belongs to the author, performing artist, maker of a sound or visual recording, a broadcast or television organisation or other holder of this right, or the person who infringes the above-mentioned rights in some other manner, is punished by imprisonment for the period of up to two years, or by a monetary fine, or by forfeiture of a thing. (2) The perpetrator is punished by imprisonment for a period from six months up to five years, or by a monetary fine, or forfeiture of a thing, if: (a) this person gains by the action stated in paragraph 1 considerable benefit, or (b) this person commits an act of a large scope. When considering unlawful actions in terms of their intensity and thus establishing a criminal act it should be stressed that it is a matter for the judge’s discretion and before him that of the prosecutor. As for Section 150 the condition is the release of goods into free circulation, or the release of a service with a direct unlawful use of a protected sign. Experience which could be generalised, above all by the judiciary, has not yet been gained in the Slovak Republic. Second part In any case the determination of the amount of damage is a matter for the plaintiff. In case the amount of damage is adequately and reliably justified and proved the court has the grounds to adjudicate on the claimed damage. In cases where the right holder suffers material loss which does not have the character of damage from the legal point of view, as it was not caused by an illegal action, or in case of the occurrence of non material loss, the court can assign the right to adequate satisfaction to an injured party which can also be monetary performance. In such case the amount of monetary equivalent representing the satisfaction is determined in the judge’s discretion which is obviously based on the submitted request and, although it is not an objectively established fact but the fact modelled on the basis of a discretion, it must have a rational basis. We consider the above-mentioned facts answer the question as to what would be regarded as expenses of the right holder which have to be reimbursed pursuant to Article 45.1. A party to a proceeding who is successful, or partly successful, can be adjudicated the right to compensation for costs of the proceedings to the extent of his success. These include apart from legal fees, attorney’s fees and also other fees which were provable and purposefully expended in relation to the enforcement of the right in court. The reimbursement of attorney’s fees is objectively calculated according to the tariffs given by the Decree of the Ministry of Justice determining the remuneration of attorneys for individual acts according to their kind, amount of claim and number. As for the implementation of Article 45.2, second sentence of the TRIPS Agreement, according to our opinion it is included in Section 26 (3) of the Law on Trademarks No. 55/1997 Coll., which adjudicates the right to the compensation for damage, or the right to adequate satisfaction, which can also be monetary performance regardless of whether the infringer infringed the rights of the right holder and caused, knowingly or unknowingly, damage or other loss.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Suiza 1. Please explain whether international treaties which contain detailed provisions addressed to the (judicial) authorities and not to the State itself are considered as self-executing in your system? If not, when there is a divergence between the intellectual property legislation/practices and the international agreement in your country, does the latter automatically prevail? If not, please explain the means allowing your country to fulfil the international obligations? Please cite the relevant texts or jurisprudence.
First of all it is necessary to reply to the part of question 1 regarding precedence of ratified and published international conventions over Slovak domestic law in case of any contradiction. In this respect it must be stressed that in accordance with Article 11 of the Constitution of the Slovak Republic only the conventions regulating human rights have direct precedence before law, so that in cases where an international convention provides for the rights of the above-mentioned character to a broader extent than the domestic law, and also in the cases where there is direct contradiction between any convention and the law, the court can apply directly the international convention. Pursuant to Article 125(e) of the Constitution of the Slovak Republic other international conventions also have precedence when the Constitutional Court makes decisions regarding the conformity of generally binding legal regulations with international conventions proclaimed in the manner provided for the promulgation of laws. If the Constitutional Court makes a decision with respect to the non conformity of the law with any international convention, this law, or its relevant part, ceases to be in force after the period of six months if, in the meantime, it has not been amended by the Parliament according to the decision of the Constitutional Court. As a result of the above, any international convention other than the convention on human rights has precedence over the domestic law, but this precedence cannot be applied directly, rather only after the above-mentioned process in the Constitutional Court. The process described under Article 125 of the Constitution is not used in practice because the international obligations in the form of agreements published in the Collection of Laws become part of domestic law. This status of international agreement results from provisions paragraphs 4(3), 6(1b) and 2 of Law No. 1/1993 Coll. The contingent contradiction or imperfection of legislation is eliminated by amendment or recodification of the mentioned provision.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Suiza 2. Article 55 of the TRIPS Agreement provides that "... in appropriate cases, this time limit [of ten days] may be extended by another ten working days". Is such time extension foreseen in your laws? If yes, please cite the relevant provisions. If not, please explain how an applicant can avail himself of this possibility as provided by the TRIPS Agreement?
The regulations regarding trademarks and customs at present do not entitle the right holder to officially request intervention by the customs authorities in matters regarding imitated or counterfeit products in relation to trademarks and copyright. According to Section 60 of the Law on Customs No. 180/1996 Coll. the customs authorities are obliged to take into consideration prohibitions and restrictions with regard to intellectual property protection in customs proceedings. The right holder can initiate the suspension of goods at the border and in case of his right the customs authorities are obliged to respect this. This amendment, though, is not sufficient as the right holder does not become a party to a proceeding through this action and has no procedural rights which he would have if he was a party to a proceeding. On the other hand a financial guarantee cannot be required in cases where the suspension of goods would be established as unjustified and would result in damage, or material loss. The present legislation does not comply with the provisions of Articles 52 through 57 and 59 of the TRIPS Agreement. Specific new legislation for the border measures addressing among other the provisions of the Articles 52 through 57 and 59 of the TRIPS Agreement is under consideration.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 1. Under the Constitution of the Slovak Republic international conventions which are ratified and published in the Slovak Republic in accordance with applicable procedures become part of the domestic law of the Slovak Republic and have precedence over same to the extent of any contradiction. Such ratified and published international conventions may therefore be said to supplement Slovak domestic law in cases where there is no contradiction between the two. It is the understanding of the European Communities and their Member States that the TRIPS Agreement has not yet been officially published in the Slovak Republic in accordance with relevant constitutional requirements. Please explain.
First of all it is necessary to reply to the part of question 1 regarding precedence of ratified and published international conventions over Slovak domestic law in case of any contradiction. In this respect it must be stressed that in accordance with Article 11 of the Constitution of the Slovak Republic only the conventions regulating human rights have direct precedence before law, so that in cases where an international convention provides for the rights of the above-mentioned character to a broader extent than the domestic law, and also in cases where there is any direct contradiction between any convention and the law, the court can apply directly the international convention. Pursuant to Article 125 (e) of the Constitution of the Slovak Republic other international conventions also have precedence when the Constitutional Court makes decisions regarding the conformity of generally binding legal regulations with international conventions proclaimed in the manner provided for the promulgation of laws. If the Constitutional Court makes a decision with respect to the non conformity of the law with any international convention, this law, or its relevant part, ceases to be in force after the period of six months if, in the meantime, it has not been amended by the Parliament according to the decision of the Constitutional Court. As a result of the above, any international convention other than the convention on human rights has precedence over the domestic law, but this precedence cannot be applied directly, rather only after the above-mentioned process in the Constitutional Court. The TRIPS Agreement as a part of the Final Act was ratified by the Parliament in December 1995 and it entered into force as of the day of the approval. From this date the provisions of the TRIPS Agreement were incorporated into the national legislation (e.g. trademark law). The TRIPS Agreement is available in the Slovak language to all relevant state administrative bodies and to the business community through various publications. Official publication of the translation of the TRIPS Agreement is expected in the near future, however this is considered as a strictly technical issue.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 2. What is the status of the recodification by the Slovak Republic of Law No. 99/1963 on Civil Procedures (hereinafter referred to as the "Slovak Code of Civil Procedure") and of Law No. 392/1992 on Criminal Law? How does the new legislation implement Part III of the TRIPS Agreement?
The recodification of the Code of Civil Procedure of the present Law No. 99/1963 including amendments is in its final stages. At present the review of the proposed amendment has been concluded by the expert institutions recommended by the European Commission. The conclusions of the recommendations have not yet been fully analyzed by the Ministry of Justice as they are being translated into the Slovak language. In general it can be said that the Slovak Code of Civil Procedure, especially after its amendment in 1992, complies with the criteria of Part III of the TRIPS Agreement. It is necessary to stress that the length of legal proceedings which, following the changes of the political system, was too long especially regarding commercial matters, cannot be essentially influenced by legal measures. The improvement in this matter is contingent, above all, on the consolidation of economic and partly political life of the society. In terms of time horizon of the recodification of the Code of Civil Procedure, according to the information from the Ministry of Justice it is expected that the proposal will be submitted in its final phase of the legislative process in the Parliament during 1998. Regarding the recodification of the Criminal Law and Criminal Code the legislative work is in a more advanced stage and the beginning of the final phase of the legislative process in the Parliament is expected to be completed in the course of this year. In accordance with the Criminal Law, in cases where the court makes a decision about commitment of a criminal act pursuant to Sections 150 through 151 of the Criminal Law (protection of industrial property rights, which also concerns copyright and related rights) the punishment of forfeiture of a thing, or in prior stages, seizure of things serving for the perpetration of a criminal act, can be imposed, by means of which Article 46 of the TRIPS Agreement can be applied to a certain extent.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 3. Are the enforcement procedures as specified in the TRIPS Agreement available under the laws of the Slovak Republic so as to permit effective action without unwarranted delays in accordance with Articles 41.1 and 41.2 of the TRIPS Agreement? Please explain.
The procedures enforcing industrial property rights are secured and executed by the Industrial Property Office of the Slovak Republic and by ordinary courts within their given competences. Within the jurisdiction of the Court of Appeals (High Court) is also the examination of decisions of the Industrial Property Office as the central body of the state administration. The proceedings before the Office are generally accessible both from the viewpoint of the procedure, as there are not any special requirements imposed regarding communication with the Office, as well as the proceedings before the Office. In proceedings the Office gives priority to matters concerning disputes of parties in legal proceedings or international applications for trademarks. The same applies in case of proceedings before the court where the possibility of not complying with the time limit or unwarranted delays can be solved by submitting the proposal for the provisional measure, which is ordered by the court according to Section 75, 2 of the Code of Civil Procedure, within 30 days of the day of submitting the proposal for the provisional measure. The enforcement of rights through the above-mentioned procedures must be in conformity with good morals or commercial practices. The prevention of the creation of obstacles to legal trade as well as of the infringement of rights is the subject of the amendment provided by Sections 3 through 10 of the Law on Protection of Economic Competition No.188/1994 Coll. in which case the competent body is the Anti Monopoly Office of the Slovak Republic.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 4. Please explain whether and how Slovak law permits relevant judicial authorities to compel the production of evidence by an opposing party, subject to conditions which ensure the protection of confidential information in appropriate cases, in accordance with Article 43.1 of the TRIPS Agreement? If this is not the case, does the Government of the Slovak Republic intend to include such a provision in the recodification of the Slovak Code of Civil Procedure?
The court can compel everybody, including a party to the proceedings, to produce a document or an object as evidence (Section 129, 2, Code of Civil Procedure). The court may also order the examination of a thing in the place where it is located (Section 130). The court may also hear the parties to the proceedings as witnesses (Section 131). Disobedience of the court’s order can be sanctioned by imposing a penalty several times in order. According to Sections 35, 37 and 38 of the Law on Civil Procedure an administrative authority also has similar jurisdiction. The examination of submitted evidence is at the court’s discretion. In cases where the plaintiff partially lacks evidence the court can also take into consideration and, for the plaintiff’s benefit, examine circumstantial evidence and, in extreme cases, also deal with the question of the trustworthiness of the party to the proceedings and decide for the plaintiff’s benefit but only if the opposing party does not rebut evidence produced by the plaintiff. In specific cases the law deals with the supposed lack of evidence of the injured party by means of rebuttable legal presumptions as, for example, provided by the patent law in Section 13, 2 of Law No. 527/1990 Coll. as follows: "If the patent is granted to a process the rights to this patent are extended to the products obtained directly by a patented process, when identical products are considered to be obtained by the procedure of protection if it is not proved otherwise". The court then can require any person to submit documents, or objects, or it can request this person to testify regarding the facts proposed by a party to the proceedings if this party is not capable of producing evidence. The protection of official (State) and professional secrets is provided by Law No. 100/1996 Coll. According to Section 3, 1, a professional secret is information or a thing connected with an activity of a State body, community or other legal entity indicated in the list of facts presenting the subject of a professional secret of a central body or community which, with respect to its importance, must be protected against disclosure, misuse, damage, destruction, loss or stealing. Every State body makes a list of official secrets whose release and deposit is published in the Collection of Laws. In the case of the Industrial Property Office the subject matter of its official secrets are considered to be an invention, utility model, industrial design, and topography of semiconductor products when an applicant or right holder requests secrecy. In such cases the treatment of the documentary material and access to it are the subject of a special protection regime in accordance with the law. The same procedure is applied in a legal proceeding. A further category is trade secrets, and as such production secrets should be considered. With regard to the above-mentioned the protection is provided by the Commercial Code No. 513/1991 Coll. Section 17 of the Commercial Code defines trade secrets as follows: "The subject matter of the rights which belong to an enterprise are also trade secrets. Trade secrets are made up of all facts of trade, production, or technical nature connected with an enterprise, and which have real or at least potential material or non material value, and which are not generally accessible in trade circles, and should be officially secret if an entrepreneur so wishes and he himself in an adequate manner secures their secrecy". According to Section 20: "The entrepreneur is entitled to legal protection against breach or jeopardy of the right to trade secret as against unfair competition." The breach of trade secret is defined in Section 51 as follows: "The breach of trade secret is an action by which a person unlawfully states, reveals to another person, or for himself or for another person makes use of a trade secret (Section 17), which can be used in competition and about which he obtains knowledge in the following manner: "(a) The secret was confided to him or it became accessible in some other manner (e.g. from technical documents, instructions, drawings, models or designs) based on an employee relationship with his competitor, or on the basis of some other relationship with the competitor, or in the execution of his function to which he was called by the court or some other body, "(b) by his own action or another person’s action which is contrary to law." From the quoted part of Section 51, a) and b), the obligations of third parties in relation to a trade secret are evident, albeit very generally. For the purpose of the proceedings before the Anti Monopoly Office the obligations of the third persons are defined in Sections 15 and 16 of the Law on Protection of Economic Competition No. 188/1994. In Section 15 it is provided: "Entrepreneurs are obliged to submit to the Office the required documents and information, to comply with examination of these documents and information and to enable employees of the Office to enter all objects, premises and means of transport of entrepreneurs". In Section 16 it is provided: (1) "The documents and information obtained by the Office from entrepreneurs of the bodies of the State administration and communities can be used only for the purposes for which they were requested." (2) "The employees of the Office as well as the persons commissioned to fulfil the tasks which belong to the competence of the Office are obliged to adhere to secrecy regarding the facts making up trade secrets, about which they obtained knowledge when fulfilling the above-mentioned tasks." The last category represents confidential information, i.e. the facts which do not meet the criteria of an official, professional or trade secret but there is a rational and socially acceptable reason for their confidential treatment. In general, this category is not regulated by a specific law. However, some norms of procedural character regulate the obligations of the third parties (especially of the State authorities) in relation to confidential information. The above-mentioned norms are Sections 44 and 124 of the Code of Civil Procedure, Section 23 of the Law on Civil Procedure No.71/1967 Coll., Section 4 of the Decree of the Ministry of Justice Regulations of Procedure for District and Regional Courts No.66/1992 Coll.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 5. Please explain whether and how Slovak law permits relevant judicial authorities to make preliminary and final determinations on the basis of information presented to them in cases where a party to a proceeding voluntarily and without good reason refuses access to or otherwise does not provide necessary information or significantly impedes a procedure relating to an enforcement action in accordance with Article 43.2 of the TRIPS Agreement? If this is not the case, does the Government of the Slovak Republic intend to include such a provision in the recodification of the Slovak Code of Civil Procedure?
This question was partly answered within the answer to question 3. On the basis of the proposal of a party the court can order preliminary measures in cases where statements of a party regarding presented information appear reliable while it is not necessary to hear an opposing party. In principle, the court renders an opportunity to an opposing party to state its own opinion regarding the proposal for a preliminary measure whose force is time limited, or limited by a final decision. A party to a proceeding is obliged to appear before the court in person or through a representative and he can be forced to do so by means of fines or be brought before the court by the police. This question was also partly answered in the answer to question 4. With regard to the TRIPS Agreement the provision of Section 76, 1 of the Code of Civil Procedure is important according to which the court can impose an obligation on a party by means of a preliminary measure not to manage, administer or handle things or rights, to do something, to abstain from something, or to countenance something, to deposit a monetary sum or deposit a thing with the court, etc.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 6. Please explain whether and how Slovak law permits relevant judicial authorities to order the disposal outside the channels of commerce, without compensation of any sort, of: (a) goods that they have found to be infringing; and/or (b) materials and implements the predominant use of which has been in the creation of the infringing goods, in accordance with Article 46 of the TRIPS Agreement? Please also explain whether and how Slovak law permits relevant judicial authorities to order the destruction of infringing goods in accordance with Article 46 of the TRIPS Agreement? If this is not the case, does the Government of the Slovak Republic intend to include such a provision in the recodification of the Slovak Code of Civil Procedure?
In accordance with Section 26, 1 of the Law on Trademarks No. 55/1997 Coll. the trademark holder can request anyone to refrain from the use of his trademark or a sign confusingly similar to his trademark for identical or similar goods or services and may request that thus marked items are withdrawn from the market. Similar rights are granted mutatis mutandis to holders of other subjects of industrial property. The court can forbid the use of an identical or confusingly similar mark for identical or similar goods or services (this limitation does not concern well-known trademarks), and order the disposal of such goods outside the channels of commerce. The provisions permitting orders for the destruction of infringing goods are currently under consideration with respect to their compatibility with the Constitution. At present such procedure is possible only in cases where it is established that a criminal act was committed then, as has been mentioned above, a body active in criminal proceedings can make a decision regarding seizure of a thing which serves to commit a criminal act and the court can order, among other things, forfeiture of a thing. The specific amendment in this respect is expected in the recodification of the Customs Law, especially in relation to protection from infringing goods at the border.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea [Follow-up question from the EC] Please indicate when the recodification of the Customs Law will take place.
Preparation of the special regulation on border measures relating to the protection of intellectual property rights is expected to begin in the year 1998 with the aim to finish the legislative process and to adopt this law in the following year.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 7. Please explain whether Slovak law permits relevant judicial authorities to order an infringer to inform the right holder of the identity of third persons involved in the production and distribution of infringing goods or services and of their channels of distribution in accordance with Article 47 of the TRIPS Agreement? If this is not the case, will this type of provision be included in the recodification of the Slovak Code of Civil Procedure?
The right to information in accordance with Article 47 of the TRIPS Agreement is provided to the right holder by Section 25 (2) and (3) of the Law on Trademarks No. 55/1997, according to which the right holder can request the above information through the court.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea [Follow-up questions from the EC] Could the Government of the Slovak Republic please clarify whether the competence of relevant judicial authorities to order an infringer to inform the right holder of the identity of third persons involved in the production and distribution of infringing goods or services and of their channels of distribution is limited to holders of a mark. If so, does the Government of the Slovak Republic intend to extend this authority to other areas of intellectual property?
The right to information according to Article 47 of the TRIPS Agreement regulates the Trademark Law No. 55/1997 Coll. only. But considering the planned total recodification of the legislation in the field of the protection of industrial property rights (in the frame of approximation of the law), this authority will also be extended to other areas of intellectual property rights.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea Could the Slovak Republic please explain in more detail what steps it is going to take to bring its law into compliance with Articles 52 to 57 and 59 of the TRIPS Agreement?
See the reply to the follow-up question to question 6.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 8. Does Slovak law provide for a procedure whereby a right holder may apply for the suspension by customs authorities of the release into free circulation of goods suspected of being counterfeit trademark or pirated copyright goods in accordance with Article 51 of the TRIPS Agreement? If so, do such procedures comply with the provisions of Articles 52 to 57 and 59 of the TRIPS Agreement? Please explain.
The regulations regarding trademarks and customs at present do not entitle the right holder to officially request intervention by the customs authorities in the matters regarding imitated or counterfeit products in relation to trademarks and copyright. According to Section 60 of the Law on Customs No. 180/1996 Coll. the customs authorities are obliged to take into consideration prohibitions and restrictions with regard to the intellectual property protection in the customs proceedings. The right holder can initiate the suspension of goods at the border and in case of his right the customs authorities are obliged to respect this. This amendment, though, is not sufficient as the right holder does not become a party to a proceeding through this action and has no procedural rights which he would have if he was a party to a proceeding. On the other hand a financial guarantee cannot be required in cases where the suspension of goods would be established as unjustified and would result in damage or material loss. The present amendment does not comply with the provisions of Articles 52 through 57 and 59 of the TRIPS Agreement. Specific new legislation for the border measures addressing among other things the provisions of Articles 52 through 57 and 59 of the TRIPS Agreement is under consideration.
05/05/1999
IP/Q4/SVK/1 República Eslovaca Unión Europea 9. Does Slovak law require competent authorities to act upon their own initiative and to suspend the release of goods in accordance with Article 58 of the TRIPS Agreement? If so, does Slovak law also comply with the provisions of Article 58, paragraphs (a) to (c) of the TRIPS Agreement? Please explain.
This question was partly answered in the answer to question 8 which means that if the customs authorities obtain knowledge in any manner that goods cleared through customs infringe an intellectual property right they are obliged to respect this fact and act accordingly. It usually results in the release into circulation of goods being suspended.
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IP/Q4/SVK/1 República Eslovaca Unión Europea 10. With regard to cases that involve the infringement of intellectual property, could the Government of the Slovak Republic provide data on the number of: - law suits that have been filed including their respective outcome and the average length from the filing of a complaint until the final judgement; - injunctions that have been issued (as defined in Article 44 of the TRIPS Agreement) and explain how such injunctions are being enforced; - provisional measures (as defined in Article 50 of the TRIPS Agreement) that have been granted and the average length to obtain such measures (from the request); - suspensions at the border of counterfeit trademark/pirated copyright goods or in relation to goods where other intellectual property rights are infringed; - criminal cases including the sentences that have been applied; whether they have been executed; and please also explain what kind of infringement of an intellectual property right would be regarded as a violation of criminal law; - seizures and/or destruction of counterfeit trademark and pirated copyright goods. Furthermore, could the Government of the Slovak Republic explain and give practical examples of: - how the compensation for damages of the infringement of intellectual property rights is calculated (Article 45.1 of the TRIPS Agreement); - what would be regarded as "expenses of the right holder" which have to be reimbursed pursuant to Article 45.2, first half of the first sentence, of the TRIPS Agreement and how they would be calculated; - whether attorney’s fees can be reimbursed and how such fees would be calculated; - whether Article 45.2, second sentence, of the TRIPS Agreement has been implemented in the Slovak Republic and how such "damages" would be calculated?
The required statistical data is not available directly in the Office. The Office has asked the Ministry of Justice and the Central Customs Administration for the provision of the above-mentioned information. In order to answer the question regarding the criminal aspects of the intellectual property protection it would be best to quote the concrete provisions of the Code of Criminal Procedure, Sections 150 through 152. Section 150 Infringement of the rights to a trademark, trade name and protected appellation of origin (1) The person who has put on the market products or provided services marked with a mark identical to a trademark, the exclusive right for which belongs to another person, or a sign confusingly similar to this trademark, is punished by imprisonment for the period of one year, or by a monetary fine, or forfeiture of a thing. (2) Equal punishment is imposed on a person who in order to achieve economic benefit: (a) unlawfully uses a trade name or whatever sign confusingly similar with this name, or (b) puts into circulation products unlawfully marked with an appellation of origin to which the exclusive right belongs to another person, or with an appellation of origin confusingly similar. Section 151 Infringement of industrial rights The person who unlawfully infringes the right to a protected invention, industrial design, utility model or topography of semiconductor products is punished by imprisonment for the period of up to three years, or a monetary fine. Section 152 Infringement of copyright (1) The person who unlawfully disposes with a work which is the subject matter of the protection according to the copyright, or with a performance of a performing artist, with a sound or visual recording, with a broadcast or television programme which are the subject matter of the right similar to the copyright, in the manner which belongs to the author, performing artist, maker of a sound or visual recording, a broadcast or television organisation or other holder of this right, or the person who infringes the above-mentioned rights in some other manner, is punished by imprisonment for the period of up to two years, or by a monetary fine, or by forfeiture of a thing. (2) The perpetrator is punished by imprisonment for a period from six months up to five years, or by a monetary fine, or forfeiture of a thing, if: (a) this person gains by the action stated in paragraph 1 considerable benefit, or (b) this person commits an act of a large scope. When considering unlawful actions in terms of their intensity and thus establishing a criminal act it should be stressed that it is a matter for the judge’s discretion and before him that of the prosecutor. As for Section 150 the condition is the release of goods into free circulation, or the release of a service with a direct unlawful use of a protected sign. Experience which could be generalised, above all by the judiciary, has not yet been gained in the Slovak Republic. Second part In any case the determination of the amount of damage is a matter for the plaintiff. In case the amount of damage is adequately and reliably justified and proved the court has the grounds to adjudicate on the claimed damage. In cases where the right holder suffers material loss which does not have the character of damage from the legal point of view, as it was not caused by an illegal action, or in case of the occurrence of non material loss, the court can assign the right to adequate satisfaction to an injured party which can also be monetary performance. In such case the amount of monetary equivalent representing the satisfaction is determined in the judge’s discretion which is obviously based on the submitted request and, although it is not an objectively established fact but the fact modelled on the basis of a discretion, it must have a rational basis. We consider the above-mentioned facts answer the question as to what would be regarded as expenses of the right holder which have to be reimbursed pursuant to Article 45.1. A party to a proceeding who is successful, or partly successful, can be adjudicated the right to compensation for costs of the proceedings to the extent of his success. These include apart from legal fees, attorney’s fees and also other fees which were provable and purposefully expended in relation to the enforcement of the right in court. The reimbursement of attorney’s fees is objectively calculated according to the tariffs given by the Decree of the Ministry of Justice determining the remuneration of attorneys for individual acts according to their kind, amount of claim and number. As for the implementation of Article 45.2, second sentence of the TRIPS Agreement, according to our opinion it is included in Section 26 (3) of the Law on Trademarks No. 55/1997 Coll., which adjudicates the right to compensation for damage, or the right to adequate satisfaction, which can also be monetary performance regardless of whether the infringer infringed the rights of the right holder and caused, knowingly or unknowingly, damage or other loss. Criminal Procedures [Part of the response is in table format] Statistics on Civil Actions [Part of the response is in table format]
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