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/SWE/1 Suecia Estados Unidos de América 11. Article 50.4 requires that parties be notified when provisional measures have been adopted inaudita altera parte. Please describe briefly the procedures followed by each authority able to adopt such measures for notifying affected parties and state the time within which such notice must take place.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement6 provisional measures are available under Swedish law inaudita altera parte in the form of interlocutory injunctions (under special provisions in each one of the intellectual property laws), in the form of general provisional measures in civil cases (Chapter 15, Article 3 of the Code on Judicial Procedure) and in the form of provisional measures and security measures (detention or arrest, provisional attachment, etc.) in criminal cases. From general principles in procedural law in Sweden follows that when an application for a provisional measure is filed and the Court finds it necessary to grant inaudita altera parte the measure applied, the application and the decision on the grant of that measure are served upon the defendant at the same time; the defendant will then have the possibility to request a review of the action taken. It also follows from general principles that cases relating to provisional measures are to be dealt with by the Courts without delay. In established practice this will occur within days. In cases relating to documents or objects there are, however, no determined time-limits in this respect.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 12. Article 52 of the TRIPS Agreement requires that rights holders wishing to stop importation of counterfeit trademarked goods or pirated copyrighted works present evidence to the competent authorities that there is prima facie infringement of their trademark or copyright. Please explain what evidence will constitute prima facie infringement in Sweden.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement, Sweden applies the European Union Council Regulation No. 3295/94 of 22 December 1994, as further implemented through the Act on Customs Control of Trademark Infringements of 15 December 1994. As mentioned in connection with question 7, the Swedish legal system is based on a free evaluation of the facts in the case concerned and not on any formal requirements as to the value of certain facts in that respect. Thus, there are no explicit provisions on what would constitute prima facie evidence. In the case of border measures, a corresponding effect will follow from the fact that the application for a border measure shall contain a sufficiently detailed description of the infringing goods and evidence that the applicant is actually the right owner to the relation to the goods (see also above in the response to question 10).
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 13. Article 57 requires that the competent authorities be able to authorize the right holder to inspect the detained goods in order to substantiate the claims. Please explain how right holders are provided an opportunity to inspect suspect goods that have been detained by customs authorities.
The above-mentioned Regulation applied by Sweden provides that the customs authority concerned shall give the right-owner and other persons who are affected by any of the actions taken, a possibility to inspect the goods. Also in this case Swedish law does not contain any specific criteria on the way in which right-holders are to be provided an opportunity to inspect suspect goods that have been detained by customs authorities.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 14. 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 Sweden.
There are no explicit provision on de minimis imports in Swedish law (except the provisions on tax-free importation of duty-free goods which are hardly of any interest in this context).
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 15. 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 Sweden comply with that obligation.
In a bill (Bill 1993/94:122, pages 55-56) containing proposals for strengthening the measures against intellectual property infringements (which proposals were adopted by the Parliament) the Government stated, inter alia, that "acts that involve infringements of intellectual property rights are to be taken seriously and possibilities must exist to impose severe imprisonment penalties in serious cases". The Government then proposed - and the Parliament accepted - that the maximum penalty be increased from six months to two years for industrial property infringements (formerly, this imprisonment scale had existed only as far as copyright infringements were concerned). This increase of the maximum penalty had also the effect of extending the timeframe for instituting an action in respect of the violation of an intellectual property right and of making the provisions on detention of suspected persons possible. It seems that the Courts more and more tend to adjudicate imprisonment sanction, at least in more flagrant copyright infringement cases. As an example, it can be mentioned that the Court of Appear in Stockholm in a judgement of 26 September 1996, invoked, inter alia, the fact that the piracy activities of a defendant involved several hundreds of copies of children's movies which are commercially interesting for a comparatively long period in an important market and that, consequently, great damage had been caused to the right-owners. Moreover, part of the activities had occurred through different shops, a fact that would make possible a wide distribution which was therefore especially dangerous also because the distribution would occur without the public suspecting that the copies were printed ones. For these reasons the Court found that the penalty should be imprisonment.
26/08/1998
IP/Q4/SWE/1 Suecia 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.
It has proved to be extremely difficult to obtain any exact and reliable information concerning the number of intellectual property cases in the courts and outright impossible to obtain such information broken down according to types of rights and types of cases, the reason being that no such breakdown exists in the statistical information available at our central court administration. The information below is, therefore, based on personal inquiries at some courts which are of special importance in this respect. The information relates only to civil cases; no specific information is available on the number of criminal cases, the reason being that those which concern intellectual property are not singled out in the statistics and, furthermore, intellectual property violations frequently are linked to other types of offences/crimes and thus disappear in the statistics. Generally speaking, the impression of the authorities is that the number of both civil and criminal cases has been steadily increasing during the last ten years. As regards the proceedings in the ordinary courts, civil litigation in patent cases is concentrated in the Stockholm City Court and in practice also most civil litigation occurs in that Court. According to the information provided by the Court, 31 cases have been filed in the course of 1996 and 20 cases between 1 January 1997 and 30 November 1997. As regards administrative proceedings, which are perhaps of less interest from an enforcement point of view, the normal route is that rejections of applications for industrial property rights may be appealed against to the Patent Court (which is the second instance) and from there to the Supreme Administrative Court. Each year about 100 patent cases go to the Patent Court and about 700 cases relating to other industrial property rights, primarily trademark rights. The Supreme Administrative Court received 95 appeals from the Patent Court in 1996 and 61 cases during the first 11 months of 1997.
26/08/1998
IP/Q4/SWE/1 Suecia Estados Unidos de América 2. Please provide statistical information related to criminal enforcement in the area of copyright piracy and trademark infringement for each of the years 1996 and 1997, including the number of raids, prosecutions, convictions and the amount of fines and/or jail terms (including whether the fines were paid and whether the jail term was actually served or was suspended) and any other information establishing that your criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Please see the reply to follow-up question 1.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 1. Please indicate the "competent authorities" stipulated in Article 51 of the TRIPS Agreement.
Decisions on the suspension of the release into free circulation of goods as mentioned in Article 51 of the TRIPS Agreement are taken by the National Customs Board ("Generaltullstyrelsen") which is the central administrative customs authority, whose decisions may be appealed against to the general administrative courts (the County Administrative Courts, the Central Administrative Court and the Supreme Administrative Court). The question of whether an infringement has actually taken place and the measures to be taken in case such an infringement has actually occurred, is decided by the competent ordinary Court which also has the power to issue an interim decision to the effect that the suspension shall be terminated.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 2. Please explain whether "proceedings leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
As mentioned in the reply to question 1, decisions on the merits of the case are taken by the ordinary Courts.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 3. Are there any ways other than the application stipulated in Articles 51 and 52 of the TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder to request the competent authorities to suspend the release of the goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights?
As indicated in Sweden's response to question 5 of the Checklist of Issues on Enforcement there are provisions in the various intellectual property acts which relate to the destruction and disposal, etc. of infringing material according to decisions by the Courts in infringement cases. Those decisions may also involve seizure, also on a preliminary basis, of such infringing material.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 4. Please explain what term your country regards as "a reasonable period within which the competent authorities shall inform the applicant whether or not they have accepted the Application" stipulated in Article 52 of the TRIPS Agreement.
The national legislation in force (Act 1994:1552 on Customs Control of Trademark Infringements, which contains provisions complementary to those in the European Union Council Regulation No. 3295/94) contains no provisions on the term within which the applicant shall be informed whether the application has been accepted or not. From the implementing regulations to that European Union Regulation (Commission Regulation No. 1367/95) follows, however, that such information shall be given immediately, and this is obviously applied also at the Swedish national level.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 5. Please explain the term during which the Application is effective.
The Swedish Act mentioned in the reply to question 4 does not contain indications concerning the effective term of the application. In internal customs regulations, however, a period of one year is prescribed in this respect.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 6. Please explain whether a right holder is obliged to pay any fees to lodge the Application.
The Act mentioned in the reply to question 4 gives the Government the authority to prescribe fees in relation to applications as mentioned in the question.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 7. Please indicate provisions of laws and ordinances which prescribe the "proceedings leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement. And please summarize their contents.
The legislative provisions referred to in the question are of two types. One consists of the provisions which are contained in the various intellectual property acts and which determine the criminal and civil liability for infringements and which obviously are applied by the Courts in order to decide the case on its merits. The other type consists of provisions in the Code of Judicial Procedure and which describe the various steps in the criminal or civil proceedings respectively. Generally speaking such a procedure is initiated through an application for summons of the defendant to the Court. 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. Thereupon the Court hears the case, in civil cases usually one or more preliminary hearings followed by the main hearing. Then the Court issues its judgement which may normally be appealed to the Court of Appeal and, in cases of particular importance, to the Supreme Court.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 8. Please explain the specific procedure, if any, to be applied to the goods which are not evident whether or not they infringe intellectual property rights, in Article 55 of the TRIPS Agreement.
As mentioned above, the decisions on the merits of the case are taken by the ordinary Courts, whose decisions are to be implemented by the customs authority. The Act mentioned above specifically states that the customs authority which keeps the goods in question has to implement the Court's decision concerning release, change or destruction of the goods. Consequently, where the Court finds that there is no infringement, it will order the release of the goods, and, as mentioned above, such decisions may be issued also on a preliminary basis.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 9. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they fail to suspend the release into free circulation of goods which infringe intellectual property rights with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Questions 9 to 11 concern the liability of the competent authorities towards the right-owners or the importers in case of failure to suspend the release of infringing goods or the suspension of release of non-infringing goods, respectively. As mentioned above, decisions on the suspension of the release of infringing goods are taken by the National Customs Board and then the respective local customs authority has to implement those decisions. When taking such decisions the authorities obviously have to apply the law and to make their own judgement on the merits of the case as far as the suspension issue is concerned. Failure to take or implement such decisions may, depending on the circumstances, result in criminal liability for the officials concerned, an obligation to pay damages to the applicant, etc., like in other cases where authorities fail in one way or another to act according to what the law prescribes. It should be underlined that the decision on the question of whether an infringement actually has occurred and which measures to take with the goods is a matter for the Courts and not for the administrative authorities and the decision of the Courts (concerning the release, change or destruction of the goods) has then to be implemented by the customs authorities. The above-mentioned Act prescribes that the storage of the goods whose suspension has been decided by the customs authorities has to be carried out at the expense of the applicant. Where a final decision is taken to the effect that the goods shall be destroyed or that other measures shall be taken as regards the goods, the applicant has a right to compensation from the person or persons against whom the decision has effect.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 10. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they examine goods which infringe intellectual property rights and nevertheless release them into free circulation with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Please see the reply to question 9.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 11. Please explain the responsibility that the competent authorities and other related authorities take to the importers when they suspend the release into free circulation of goods which do not infringe intellectual property rights with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Please see the reply to question 9.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 12. Is the right holder informed of identities of the importers and consignors when the competent authorities "suspend" the goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights as well as the case where the right holder is informed of identities of the importers and consignors stipulated in Article 57 of the TRIPS Agreement?
The above-mentioned Act does not contain any provisions concerning the information about the identities referred to in the question. Also in this respect the provisions in the European Union Council Regulation apply. In principle, the customs authority shall, at the request of the right-owner, inform him about the person who has submitted the customs declaration and about the receiver, if he is known. Also, the authority shall give the right-owner and other persons who are affected by any of the actions taken a possibility to inspect the goods.
26/08/1998
IP/Q4/SWE/1 Suecia Japón 13. Please explain the measures to protect confidential information in the course of the inspection stipulated in Article 57 of the TRIPS Agreement. And please indicate provisions of laws and ordinances which prescribe such measures.
The general principle under Swedish law is that documents and information in Courts and public authorities – for instance customs authorities – are available for the public unless the Secrecy Act (Act 1980:100) prescribes that, in specified and rather narrowly defined cases, the documents/information shall be kept secret. Chapter 9 of that Act contains a number of provisions on "Secrecy with Regard to Private Persons' Personal and Economic Relations". Thus, for instance, Article 2 of that Chapter provides that secrecy applies to activities relating to customs inspections as regards private persons' personal and economic relations.
26/08/1998

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