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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Página 665 de 677   |   Número de documentos : 13533

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IP/Q4/SVN/1 Eslovenia 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 identified in response to question 1 of the Checklist of Issues on Enforcement.
Any foreign party is entitled to initiate an enforcement procedure in the relevant courts. Any party may, even directly if it so wishes, initiate an enforcement procedure in the relevant courts.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 2. Please identify any requirement that a foreign party must meet to initiate a proceeding in the courts that is not required of a national or resident of Slovenia.
No specific requirements are required for foreign parties who enjoy the same treatment as national persons and/or legal entities. Moreover, foreign parties who are unable to communicate in the Slovenian language are entitled to follow the procedure with the assistance of an interpreter, provided that the costs for interpretation are borne by that party (see Articles 102(2)(3) and 105 of the Code of Civil Procedure, Official Gazette No. 4/1979, 27/1990, 1/1991-I, 55/1992, 19/1994).
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 3. Article 41.1 of the TRIPS Agreement requires establishment of safeguards against abuse of judicial and administrative enforcement procedures, including provision of adequate compensation for injury suffered because of such abuse. Please describe the means available under the law of Slovenia to prevent abuse of judicial procedures or to remedy damages suffered as a result of such abuse and cite the legal authorities for those means.
Abuse of procedural rights of parties is prohibited and can be subject to a fine (Code of Civil Procedure, Articles 10, 316). A party which abuses its procedural rights is liable to the other party for damages, which have to cover all the losses suffered (Code of Obligations, Article 190). This is explicitly regulated for any provisional measure that was sought, ordered and later found incorrect (Code of Execution, Article 274). The State and their officials can also be liable for damages caused by wilfully or negligently illegal acts of authorities (Code of Obligations, Article 172). These principles apply for both judicial and administrative procedures.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 4. Please explain any provisions in the enforcement system in Slovenia that ensure expeditious remedies. In addition, please explain what provisions are available to prevent deliberate delays by the parties to a proceeding and indicate the circumstances in which such provisions will be applied.
All the intellectual property cases have to be dealt with expeditiously, and thus have priority over other civil or commercial suits (Industrial Property Law, Article 98). A procedure in which a provisional measure is sought has to be treated urgently (Courts Act, Article 83). Deliberate delays caused by the parties can be prevented via several procedural safeguards – for instance summary judgement (Code of Civil Procedure, Article 332), fines for abuse of procedural rights (Code of Civil Procedure, Article 316), and many others.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 5. Article 41.2 addresses, among other things, the cost of judicial proceedings. Please describe any fees charged by judicial officials for filing legal actions involving intellectual property or for pursuing such actions once initiated, cite the legal authorities for such fees, and provide copies of the documents used to inform the public of such fees.
The fee for filing a suit is one per cent of the stated value of the dispute in civil matters and two per cent in commercial matters, but not more than SIT 540 (currently approximately US$4 000). The fee of the same amount applies for filing an appeal against the final judgement. The fee for the application for provisional measures is up to SIT 15 300 (approximately US$120). No fee is charged for criminal complaints (see Law on Judicial Fees, which unfortunately was amended so often that it is almost impossible to provide a reasonably voluminous copy of it).
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 6. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably in writing, the better to determine the reasoning on which the decision is based. Please state whether judges must render their decisions in writing and cite the legal authorities requiring such written opinions.
All judgements must be provided in writing, at the latest within eight days from the day when the court has decided. The decision is delivered to the parties and must involve the information on the right of appeal (see Article 337 of the Code of Civil Procedure). Each judgement must contain introduction, decision and full explanation of the findings (see Article 338 of Code of Civil Procedure).
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 7. Article 41.3 also requires that decisions on the merits of a case be based only on evidence in respect of which parties had an opportunity to be heard. Please identify the factors that may be considered by a judge in rendering a decision.
The provision of Article 41.3 of the TRIPS Agreement is fully met by numerous provisions of the Code of Civil Procedure, as this is generally the case in the continental legal system.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 8. Article 42 requires the defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures followed for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceedings and cite the legal authorities establishing these procedures.
The provision of Article 42 of the TRIPS Agreement is fully met by the Code of Civil Procedure. Civil or commercial suit has to be submitted to the defending party in advance so that there is enough time to prepare the defence – at least eight days before the first oral hearing (Code of Civil Procedure, Articles 142, 286). These provisions are not applicable only when an ex parte provisional measure is ordered. In such cases the application and the order are served on the defendant at the beginning of the enforcement (Code of Execution, Article 39).
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 9. Article 42 requires, with one narrow exception, that there be a means to identify and protect confidential information during judicial and administrative intellectual property enforcement proceedings. In IP/N/6/SVN/1, the Government of Slovenia explains that courts may exclude the public from court hearings and warn the parties to respect the confidential nature of information received at hearings. Please describe the manner in which a party that failed to respect the confidential nature of information received at hearings.
A party which fails to respect the confidential nature of information received at a hearing shall be liable for damages under the provisions of Article 154 of the Code of Obligations, (Official Gazette No. 29/78, 39/85, 2/89, 37/89, 1/1991 – 1).
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 10. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use by third parties authorized by the government, limiting the remedy for infringement to payment of adequate remuneration as provided in Article 31(h). Please describe any such limitations or remedies in the laws of Slovenia and cite the legal authorities providing for those limitations.
There is no explicit provision in national legislation which would provide for the exception as described in Article 44.2 of the TRIPS Agreement. Therefore, in any such case, most probably a very rare case, Article 44.2 of the TRIPS Agreement may be directly applicable.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 11. Article 47 provides that WTO Members may authorize judges to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution. In IP/N/6/SVN/1, the Government of Slovenia explains the manner in which a right holder may demand that persons involved in copyright infringement provide information and documents. Please describe any authority judges have under the laws of Slovenia to order infringers to identify for right holders those third parties involved in the production and distribution of infringing goods or services and their channels of distribution and describe the circumstances in which this authority would be exercised. Please describe any similar authority in connection with other forms of intellectual property.
There is the same court as indicated in Slovenia's responses to the Checklist of Issues on Enforcement, i.e. the Circuit Court of Ljubljana which has the authority to act in accordance with the provisions of Article 47 of the TRIPS Agreement. Until the provisions of this Article become part of the new Law on Industrial Property, Article 47 of the TRIPS Agreement may be directly applied.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 12. Article 48.2 permits WTO Members to exempt public authorities and officials from liability from remedies only where their actions were taken or intended in good faith in carrying out their responsibilities under the law. Please explain any exemption provided to public authorities and officials from liability for abuse of enforcement procedures, describe the circumstances in which such limitations would not apply, and cite the legal authorities granting such exemptions.
Public authorities and officials are liable, under the general rule for damages, whenever their actions were taken or intended in bad faith (Article 172 (1),(2) of the Code of Obligations). This provision implies the applicability of Article 48.2 of the TRIPS Agreement.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 13. Article 50.2 requires Members to authorize judicial authorities to adopt provisional measures inaudita altera parte. IP/N/6/SVN/1 states that such action can be taken in industrial property cases "in urgent cases". Please describe briefly the circumstances that would be considered "urgent", providing examples.
Preservation of evidence, whenever a danger of its destruction exists, is deemed to be an urgent case. The authorities have followed this practice regularly in all cases concerning copyright and trademark infringement.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 14. Article 50.3 requires that judicial authorities be authorized to require an applicant to provide evidence to establish with a sufficient degree of certainty that the applicant is the right holder and that infringement has occurred or is imminent. With respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please describe the evidence required by right holders to establish ownership.
In the field of patents, trademarks, industrial designs and topographies of integrated circuits, the ownership is established by submitting the corresponding official document issued by the Slovenian Intellectual Property Office. In the field of copyright and related rights and protection of undisclosed information, the ownership is established by providing a sample of the relevant work and/or information for which infringement is claimed.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 15. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable right holders to request suspension of the importation of counterfeit trademarked goods and pirated copyright works. IP/N/6/SVN/1 describes procedures for pirated copyright goods and says that otherwise the TRIPS Agreement applies directly. If this means that border enforcement in connection with counterfeit trademarked goods is not addressed directly in national law, please explain how the competent authorities are designated in Slovenia, since the TRIPS Agreement does not specify particular authorities. Please describe any plans to amend national legislation to implement border measures in connection with counterfeit trademarked goods.
In principle, both judicial and administrative procedure is possible, the latter, however, only in the area of pirated copyright goods (Article 173 of the Copyright and Related Rights Act). Explicit provisions in the field of industrial property will be included in the new Law on Industrial Property, which may be adopted in 1998.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 16. 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 Slovenia.
There is no quantification in this respect in the relevant national legislation. A decision what constitutes a de minimis import is judged by the rule of reason for each case individually.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 17. Article 61 of the TRIPS Agreement requires that Members have criminal procedures 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. IP/N/6/SVN/1 describes the provisions and the penalties. In relation to copyright, the documents describe an intent element, i.e., that the party have the intent "to obtain … a substantial unlawful material gain".
The intent element is a legal threshold, which draws a distinction between a copyright infringement as a criminal act (intent existing, Article 159 of the Criminal Code) and a copyright infringement as a misdemeanour (intent not existing, Article 184(1) of the Copyright Act). The term "substantial material gain" is defined as five average monthly net salaries (Article 126(13)2 of the Criminal Code), i.e. an income amounting to a total of approximately US$2 720.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 18. 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. IP/N/6/SVN/1 does not indicate that seizure, forfeiture, and the destruction of infringing goods and materials and implements for commission of the offence are available in connection with trademark counterfeiting and confiscation is referred to in connection with various copyright violations. Please describe the circumstances in which a judge would order seizure, forfeiture and destruction of infringing goods and any materials and implements.
Slovenia's response to question 24 of the Checklist of Issues on Enforcement indicates that the goods infringing the trademark shall be confiscated on an obligatory basis.
01/03/1999
IP/Q4/SVN/1 Eslovenia Estados Unidos de América 19. 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 Slovenia comply with that obligation.
The answer to this question is given in Slovenia's response to question 24 of the Checklist of Issues on Enforcement.
01/03/1999
IP/Q4/SVN/1 Eslovenia 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.
The analysis covers civil cases, commercial disputes and criminal cases where the legal action, motion and/or indictment were filed in the period from 1 January 1996 until 31 December 1997. Thus the data on judgments do not cover the cases filed before 1996, although the respective judgments were pronounced in 1996 and/or 1997. Regarding the cases filed in 1996 and 1997, the analysis, however, excludes the judgments passed after 31 December 1997. Accordingly, the analysis in question cannot provide a definite answer to the question about the final result of all proceedings dealt with in the courts. This will only be possible upon completion of all these proceedings. Hence, the analysis in question could only yield an "interim result" with reference to the situation as of 31 December 1997. Number of civil cases and commercial disputes In the years 1996 and 1997 District Courts in the Republic of Slovenia received altogether 143 legal actions in the field of intellectual property, whereof 140 suits referring to violation of intellectual property right, one suit to patent nullity and two suits to trademark cancellation. Further details on legal actions arising out of violation of intellectual property rights are as follows: - Violation of copyright and related rights 97 - Patent violation 9 - Trademark violation 14 - Industrial design violation 1 - Violation of geographical indications – - Trade name protection 8 - Unfair competition 11 - Violation of business secrecy – - Total 140 Number of requests for temporary orders (and other security measures) Among the cases referred to in Chapter 2 there were 24 cases subject to the request of a temporary order. Further details on requests for security measures are as follows: - Request for prohibition of further violation 16 - Request for requisition of objects of violation 3 - Other types of security measures (security of evidence etc.) 5 In the period in question there were 21 independent requests for security measures (excluding simultaneously filed legal actions) submitted to County Courts. Further details on requests for security measures are as follows: - Request for prohibition of further violation 18 - Request for inventory of objects of violation 4 - Request for custody of objects of violation 3 - Request for requisition of objects of violation 5 - Other types of security measures (security of evidence etc.) 3 Accordingly, in the years 1996 and 1997 there were altogether 45 requests for temporary orders submitted to the courts in the Republic of Slovenia. Further details on requests for security measures are as follows: - Request for prohibition of further violation 34 - Request for inventory of objects of violation 4 - Request for custody of objects of violation 3 - Request for requisition of objects of violation 8 - Other types of security measures (security of evidence etc.) 8 In certain cases there were simultaneous requests for several security measures. Therefore the sum of individual types of requests exceeds the total number of cases. The total number of cases relating to the violation of intellectual property rights is 164 (140 suits before District Courts and 24 independent requests for security measures before County Courts). However, the actual number of violations brought before Courts ranges between 140 and 164. As a matter of fact, in some cases the same violation is first a matter of independent request for security measures and subsequently a matter of legal action. Result of civil proceedings and commercial disputes Out of 140 proceedings started in 1996 and 1997 as a result of legal actions referring to violation of intellectual property rights there were 34 legal actions completed at the first instance court by 31 December 1997. Further details are as follows: - Request for legal action partly or full approved 16 - Judicial settlement 4 - Judgment based on recognition 2 - Withdrawal of legal action 8 - Rejection of legal action 2 - Refusal of request for legal action 2 In 22 cases where the defendant was imposed an obligation (under judgment, under judgment based on recognition or under judicial settlement) the sanctions were as follows: - Final prohibition of further violation 2 - Indemnity 18 - Other ? The reason for the low number of prohibitions and a high number of indemnities probably lies in the fact that most of the civil proceedings only concerned indemnities (almost only copyright disputes) because it was preceded by a previously issued and considered temporary prohibition of violation. In the cases at the first instance completed with a judgment, which imposed on the defendant the payment of indemnity, the sum of all such imposed amounts totals SIT 7 494 070.00 (principal without interest). The statistics cover only the cases which were completed at the first instance by 31 December 1997. Accordingly, it involves only the disputes that were completed relatively quickly (in less than two years or even within a few months upon filing of the legal action). On these grounds it could be presumed that such statistical data may predominantly cover rather simple cases and those with a lower value in dispute. Due to the short time interval between filing of legal actions and the last considered date of the judgment some more real analysis of results of civil proceedings and commercial disputes will only be possible upon completion of the remaining 75.71% of proceedings (which are not necessarily comparable by value of dispute and sanctions with those which could already be included in the analysis). Out of the 140 civil cases and commercial disputes filed in 1996 and 1997 there are two cases completed with a final judgment of the Court of Appeal. The number of finally completed cases shall also include at least those which have been completed through judicial settlement. The result of the proceedings at the second instance is not real for the same reasons as applicable to the cases completed at the first instance (short interval between filing of the legal action and the judgment of the Court of Appeal). Results of interlocutory proceedings Out of 45 requests for issue of a temporary order and/or any other interlocutory measure filed in 1996 and 1997, Slovene Courts passed their judgments by 31 December 1997 in 41 cases. By 31 December 1997, there were in total 24 final decisions on requests for interlocutory measures (i.e. completed proceeding against debtor's objection at the first instance as well as the proceeding at the second instance relating to the appeal of one of the parties). First instance judgments on requests for interlocutory measures (out of 41 cases): - Issue of temporary order regarding the prohibition of violation and/or requisition of the objects of violation 33 - Issue of decision on security of evidence 1 - Refusal of request 7 Subsequent treatment of temporary orders: - Temporary order remaining in force as final 22 - Abrogation of the order relating to the debtor's objection or appeal 9 - Absence of judgment by 31 December 1997 2 Out of 41 requests for issue of a temporary order issued in 1996 and 1997 and already final as of 31 December 1997, the figures were as follows: - Temporary orders issued at the first instance 33 (80.5%) - Temporary orders issued as final 22 (53.7%) Differently from the results of civil proceedings and commercial disputes, the data on security measures may be much more real. Since the decision-making about temporary orders is much faster, the analysis of a large majority of requests for judgments (in particular at the first instance) may already be known. Criminal proceedings As the analysis is supposed to cover only the period when the TRIPS Agreement was already in force in Slovenia (i.e. after 1 January 1996) and because it is supposed to cover only judicial proceedings and the corresponding results by 31 December 1997, the data on criminal proceedings will be applicable only with much restriction. As a matter of fact, a regular criminal proceeding is first preceded by denunciation, follows request for investigation (public prosecutor), investigations and only then the indictment. The date concerning the number of persons in the Republic of Slovenia which are treated as suspects or accused persons in these pre-criminal phases are not available to criminal courts. The same applies to possible requisitions of objects of the reproached criminal act imposed before the requests for legal actions have been filed. On these grounds it is only possible to ascertain that in the relevant period there were eight indictments filed with reference to the criminal acts reproached pursuant to Articles 158, 159, 238/1 and 309/3 of the Penal Code. No judgment has been passed in any of the criminal cases. The data on results of criminal proceedings related to the acts committed before 1 January 1996, however, do not fit into this analysis.
01/03/1999

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