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/SVN/1 Eslovenia 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 fulfill the international obligations? Please cite the relevant texts or jurisprudence.
International treaties which were ratified and officially published under Article 8 of the Constitution of the Republic of Slovenia are applicable directly and thus self-executing. This means that in Slovenia also the TRIPS Agreement is in principle applicable directly, provided that the relevant provision allows direct applicability, i.e. it has to be clear and complete. Current practice of the courts is in favour of direct applicability, as for example in the case of Article 50 of the TRIPS Agreement. There are two judgements related to patent cases, of the Court of Appeals in Ljubljana (Cgp 326/97 from 13 May 1997 and Cgp 552/97 from 12 June 1997), where the ruling was in favour of interlocutory injunctions under the conditions of Article 50.3 of the TRIPS Agreement. Therefore, there is in principle no divergence between the intellectual property legislation and practice, but if it appears, then international agreement prevails, as explicitly specified in the mentioned Article 8 of the Constitution.
01/03/1999
IP/Q4/SVN/1 Eslovenia 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 time extension of another ten working days pursuant to Article 55 of the TRIPS Agreement is not explicitly mentioned in the relevant legislation. However, since the TRIPS Agreement is directly applicable (see the answer to question 1 from Switzerland above), an applicant can make use of the extended term by directly referring to the mentioned provision of the TRIPS Agreement, which may be considered to be self-executing.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea 1. What is the typical length of time necessary to enforce the respective intellectual property rights in Slovenia? Should delays occur, what are the reasons (Article 41.2 of the TRIPS Agreement)?
The typical length is around one to two years in the first instance, and up to an additional one year in case an appeal is lodged.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea 2. With regard to cases that involve the infringement of intellectual property, could the Government of Slovenia 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.
It is difficult to give reliable statistical data on the number of various law suits because Slovenia is a relatively young State. The data available as of January 1996 onwards show that, taking into account all cases in the field of intellectual property, there are currently about 50 cases initiated each year. The average length of proceedings at the first instance (from filing the suit until the judgement) is between one and two years. In proceedings in complicated matters, especially in patent litigation with experts involved and counterclaims on revocation filed, the duration is sometimes longer. One has to add up to one additional year for ruling on an appeal against the first instance judgement. Provisional measures are ordered quickly; an interlocutory injunction in about a week. (Final) injunctions are sought in almost every infringement suit. They are enforced with fines that the court is empowered to impose under Article 225 of the Code of Execution. The other possibility is an application under Article 294 of the Code of Obligations. The court can order the party who does not obey the injunction to pay the other party a sum of money, high enough to ensure obedience (similar to French "l'astreinte"). Provisional measures are often sought and are granted in the majority of copyright cases. The success of such applications is also quite high in trademark cases, whereas in patent cases the number of granted provisional measures is lower. When an ex parte provisional measure is sought and ordered, this is done in about a week from the request. No suspension at the border of counterfeit trademark or pirated copyright goods has been requested so far. There have been around 15 criminal cases lodged. The kind of infringement which would be regarded as a violation of criminal law is specified in Slovenia's response to question 24 of the Checklist of Issues on Enforcement.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea Furthermore, could the Government of Slovenia 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 Slovenia and how such "damages" would be calculated?
The compensation is normally calculated on the basis of licence analogy, and/or lost profit is added. In addition, the Copyright and Related Rights Act explicitly provides for punitive damages which are 200 per cent higher than ordinary damages. Court attorney fees are normally regarded as expenses of the right holder which have to be reimbursed.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea 3. Could the Government of Slovenia clarify whether a right holder has the possibility to apply for provisional measures with the judicial authorities and, if founded, could such measures be adopted inaudita altera parte?
The right holder has the possibility to apply for provisional measures (see Slovenia's responses to questions 10 and 11 of the Checklist of Issues on Enforcement.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea 4. What border measures are in place or planned to comply with Slovenia's obligations under Articles 51 to 60 of the TRIPS Agreement?
For counterfeit trademark goods the TRIPS Agreement may be directly applicable. However, it is planned that the new Law on Industrial Property which may be adopted in 1998 will explicitly contain provisions which would comply with all requirements of this Part of the TRIPS Agreement. In the area of copyright, two types of border measures are available to the right holder (Article 173 of the Copyright and Related Rights Act): (1) That the right holder or his agent may inspect such goods; (2) That such goods could be seized, their release into free circulation be suspended, and the goods be detained awaiting final decision by the competent authority.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea 5. Please explain whether and, if so, how enforcement rules differ between copyright and industrial property? If so, what are the reasons? Are there any plans to harmonize enforcement provisions?
Please see the reply to question 4.
01/03/1999
IP/Q4/SVN/1 Eslovenia Unión Europea [Follow-up question from the EC] Does the Government of Slovenia intend to amend its legislation to comply with Articles 51 to 60 of the TRIPS Agreement in the area of copyright? If so, what is the foreseen timing?
The information given in Slovenia's responses to the Checklist of Issues on Enforcement, as well as the answers to the questions posed to Slovenia by the European Communities and their Member States, the United States and Japan demonstrate the compliance of Slovenian legislation with provisions of Part III of the TRIPS Agreement. Moreover, the Copyright and Related Rights Act has several explicit provisions on enforcement, including border measures. However, in the course of updating the Law on Industrial Property, the Copyright and Related Rights Act will also be scrutinized and amendments might be proposed, in order to avoid possible discrepancies between the two Acts. If this should be the case, the amendments to the Copyright and Related Rights Act will be submitted to the Parliament within the same timeframe as the new Law on Industrial Property, i.e. in 1998.
01/03/1999
IP/Q4/SWE/1 Suecia Estados Unidos de América 1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for the effective enforcement of the intellectual property rights covered by the Agreement. IP/N/6/SWE/1 describes jurisdiction in relation to copyright, patent, trademark, and industrial design cases. Please state whether the same jurisdiction applies in connection with geographical indications, integrated circuit layout-designs, and rights in undisclosed information and, if not, describe identify the courts that are responsible for infringement actions in relation to those rights.
As regards the protection of integrated circuit layout-designs and as regards rights in undisclosed information, the same the same jurisdiction applies as in the case of copyright and other intellectual property rights. However, a special regime applies as regards geographical indications. Those enjoy protection under the Marketing Act (Act 1995 No. 450). There is a special system of sanctions for violations of that Act. Thus, any person who intentionally or with carelessness contravenes the provisions of the Act may be ordered to pay to the State a "market disruption fee" of between Skr 5 000 and Skr 5 000 000, and, in addition, be subject to prohibition and information orders and may be ordered to pay a compensation for damages, etc. Procedures for the imposition of a market disruption fee may be initiated at the District Court of Stockholm by the Consumer Ombudsman (an official who must be a lawyer and who is appointed by the Government under the Marketing Act to deal with matters relating to marketing practices, etc.). If the Consumer Ombudsman in a particular case decides not to present an application for a market disruption fee, any businessman affected by the marketing and any association of such businessmen may institute such a proceeding. Furthermore, actions relating to prohibition orders (against the continuation of marketing actions which would violate the Act) may be instituted at the Stockholm City Court by the Consumer Ombudsman, by any businessman affected by the marketing activities and any association of consumers, businessmen or wage or salary earners. Interim decisions may be issued by the Court while proceedings are pending. Finally, actions relating to the payment of damages may be instituted either at the Stockholm City Court or at any District Court which is competent under the Code of Judicial Procedure. The Consumer Ombudsman has the authority to order certain such orders himself, primarily such which concern obligations for a businessman to provide information concerning such products and acts where a violation of the Marketing aAct may occur. These decisions by the Ombudsman may be appealed to the Stockholm City Court. Any judgements by the Stockholm City Court or any other District Court may be appealed against to the so-called Market Court. This Court is a specialized court competent in matters concerning the Marketing Act and matters concerning unfair competition or concerning, for instance, product liability and contract terms in consumer relations. The Market Court consists of a President and a Vice President, who must have experience as judges, and five special members who must be economic experts. The Market Court is the final instance in, inter alia, matters relating to the application of the Marketing Act.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 2. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in the courts.
The procedures for initiating enforcement procedures are the same for foreign parties as for Swedish nationals (see, however, the reply to question 3).
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 3. 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 Sweden and cite the legal authorities providing for those differences.
The Act (1980 No. 307) on the Duty for Foreign Claimants to Post a Bond for Litigation Costs contains provisions on what foreign claimants have to comply with in this respect. Basically, where a foreign national not having his residence in Sweden or a foreign legal entity wants to initiate an action at a Swedish court against a Swedish national or a Swedish legal entity, he must, upon request by the defendant, post a bond for the litigation costs which he may be ordered to pay under a final decision in the case. Then there are a number of detailed provisions about the waiver of that duty (for instance in relation to persons from the European Economic Area), about the nature of the bond, etc. which are, however, too detailed to be dealt with here.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 4. Please explain any provisions in the enforcement system in Sweden 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.
There are a number of provisions in the Swedish Code of Judicial Procedure which aim at securing the availability of expeditious remedies. For instance, Chapter 18, Article 6, of the Code makes it possible to take certain actions against any party who, through the failure to appear or to comply with a court order, or the presentation of a claim or defence that he knew or should have known to be without merit, or carelessness or oversight in other respects, has caused adjournment of the proceedings or has otherwise caused expenses for the adverse party. Such a party shall reimburse the adverse party for such expenses regardless of how costs in the case in general are to be distributed. Also, Article 7 in the same Chapter contains a provision on the liability of an attorney in case he has caused expenses through having initiated an action without provocation from his adversary or has otherwise deliberately or negligently caused unnecessary litigation. In such a case, the Court may impose joint liability for costs upon the party and his representative. Furthermore, Chapter 42, Article 15 of the Code gives the Court the authority to order a party to determine finally his claims and state the evidence that he wants to invoke, where this is called for taking into account the way in which the party has acted earlier in the proceedings. After the expiry of the time within which such an order has to be complied with, the party in question must not invoke any new circumstances or invoke any new evidence where he can not make it plausible that there was a valid excuse for his non-action in this respect. Furthermore, the Code contains provisions on so called "Default Judgement" which may be pronounced in cases amenable to out-of-court settlement. Such a judgement may be entered where a party has been directed to appear before the Court with the consequence that otherwise a default judgement may be entered against him and he nevertheless does not appear and, furthermore, that the appearing party requests such a judgement.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 5. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably be 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.
Obviously, any judgements or decisions by judges have to be rendered in writing, inter alia, to make appeals possible. Thus, Chapter 17, Article 7 prescribes that "any judgements shall be in writing and contain …".
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 6. Article 42 requires that defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceeding and cite the legal authorities establishing these procedures.
The general provisions on applications for summons and on the calling on the defendant to answer the claims in such applications are contained in Chapter 42, Articles 1 to 6 of the Code on Judicial Procedure (as regards civil cases) and in Chapter 45, Articles 1 to 9 of the same Code (as regards penal proceedings). These provisions apply in intellectual property cases as well as in other cases. Dealing here only with civil cases and leaving details aside, the provisions prescribe basically the following. Anyone who desires the issuance of a summons shall file a written application in this respect to the competent court. The application shall be signed by the plaintiff or his attorney and shall contain indications about the circumstances upon which the action is founded, the demand for relief, the documentary evidence offered and the circumstances which make the court competent. Where the summons application fails to comply with the relevant requirements or is otherwise incomplete, the Court shall direct the plaintiff to cure the defect. Where such directives are not complied with, the result is generally that the application may be dismissed. If the application is not dismissed, the Court shall issue a summons calling upon the defendant to answer the claim. The summons together with the summons application and the documents annexed thereto (for instance evidence) shall be served upon the defendant. There are no explicit time-limits within which the Court has to serve that summons in civil cases. Neither are there, generally speaking, such time-limits in criminal cases; however, if the defendant is under arrest or detention, there are time-limits within which the prosecutor has to file an application for summons in the case. Those time-limits differ somewhat depending on the situation and the seriousness of the case. It would be too complicated to go into details on these issues here, more so as these situations do not occur frequently in intellectual property cases.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 7. Article 43.2 provides that, in the event a party refuses to provide information ordered by judicial officials, those officials may be authorized to make preliminary and final determinations adverse to that party. IP/N/6/SWE/1 states that fines can be imposed in the event a person fails to produce a document ordered by the court. May judges order parties to provide information not contained in a document and have the authority to make determinations adverse to the party refusing to provide information or documents?
In addition to the provisions on documentary evidence contained in Chapter 38 of the Code of Judicial Procedure, that Code also contains provisions on the hearing of witnesses (Chapter 36), of parties under truth affirmation (Chapter 37), or experts (Chapter 40) and on examination of objects (Chapter 39). Also, a special provision in the Code deals with the evidentiary value to be given to a party's behaviour in the proceedings. In this respect, Chapter 35, Article 4, prescribes that if a party fails to respond to an order by a court to appear before it or to perform any other procedural act, or refuses to answer a question relevant to the investigation, the Court shall determine, in view of all the relevant circumstances, the evidentiary significance of the party's behaviour. Generally speaking, the Court shall, in accordance with what its conscience dictates, determine what has been proved in the case after evaluating everything that has occurred in the proceedings (Chapter 35, Article 1, of the Code of Judicial Procedure). This is the so-called "Principle of Free Evaluation of Evidence" upon which the Swedish Court procedures, and legal system in general, are based.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 8. 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 on remedies in the laws of Sweden and cite the legal authorities providing for those limitations.
There are no such limitations on remedies as mentioned in the question.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 9. Article 50.1 require that judicial authorities have the authority to order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged infringement. IP/N/6/SWE/1 describes the authority which exists to prevent further infringement or to preserve assets that might be needed to satisfy a judgement. Please identify any provisional measures available to preserve relevant evidence in regard to an alleged infringement and cite the relevant legal authority.
Provisions on orders for the preservation of evidence are contained in various provisions in the Code of Judicial Procedure. Thus, Chapter 27, Article 1, of that Code prescribes, as regards criminal proceedings: "Objects which reasonable can be assumed to be of importance for the investigation of an offence, or to have been taken from a person by an offence or to be subject to forfeiture by reason of an offence may be seized" ("tagna i beslag"); according to Article 5 of the same Chapter, Courts may, if delay entails risks, issue such seizure orders immediately to remain effective until otherwise ordered. In addition to these provisions also Chapter 15 of the same Code contains provisions on general provisional measures in civil cases. These have been elaborated on in some detail in Sweden's responses to the Checklist of Issues on Enforcement submitted by the Ministry of Justice in April 1996. Such measures may also, in practice, serve the purpose of securing evidence. Furthermore, Chapter 38, Article 2, of the Code (which provision has general application in all types of cases) prescribes that "anyone possessing a document that can be assumed to be of importance as evidence is obliged to produce it" and Article 4 of the same Chapter prescribes that "when anyone is under an obligation to produce a document as evidence, the Court may direct him to produce it". Essentially, the same provisions apply as regards examination of objects etc., provided for in Chapter 39 of the Code. All these provisions imply that provisional measures for the preservation of evidence are available under Swedish procedural law. In addition to what has been said now, also the application of some provisions in the intellectual property laws may have the effect of securing evidence in a particular case. Thus, for instance, Article 41 of the Trademark Act and Article 55 of the Copyright Act contain provisions on the seizure, also on a provisional basis of goods or objects in respect of which an infringement may have occurred. Such seized goods or objects may certainly also be of importance for evidentiary purposes.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América [Follow-up question from the US] Sweden's response to question 9 from the US describes the provisional measures which are available under Swedish law to preserve relevant evidence. Please clarify whether any of these measures can be taken without notice to the other party.
Such orders for the preservation of evidence as are mentioned in the reply to question 9 from the US may, if a delay entails risks, be issued immediately, without notice to the other party, to remain effective until otherwise ordered.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 10. 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.
There are no formal provisions on the evidence required for the holder of an intellectual property right to establish ownership of the right. This follows naturally from, for instance, the provisions on the contents of an application for summons (where the applicant has to state, inter alia, the circumstances upon which the claim is based); these circumstances would, if properly presented, constitute sufficient reason for the Court to assume that the status of the applicant in this respect is what he claims it to be. However, as regards the ownership of the rights in a literary or artistic work Article 7, first paragraph of the Copyright Act (1960 No. 729) contains a provision to the effect that "a person whose name or generally known pseudonym or signature appears in the usual manner on copies of the work or when it is made available to the public, shall, in the absence of proof to the contrary, be deemed to be its author". This thus establishes a presumption of authorship and consequently also on the right to file an action for a provisional measure.
26/08/1998

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