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 669 de 677   |   Número de documentos : 13533

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IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 1. Please describe if your legislation includes measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to your socio-economic and technological development as mentioned under Article 8 of the TRIPS Agreement. If yes, please explain how such measures are consistent with the provisions of the TRIPS Agreement.
Albanian legislation related to socio-economic development aims in general to the protection of the public health and nutrition. It takes care of the public interest and the general well-being. In Albania, the legislation on intellectual property is not dealing directly with the protection of the public health and nutrition. However, Article 3.7 of the Law on Industrial Property stipulates that no patents shall be granted in respect of essentially biological processes for the production of plants or animals, whereas in Article 40 it is stated : "Where the national security or public safety so requires, the Minister may authorize, even without the agreement of the owner of the patent or of the applicant, by notice published in the Official Journal, a government agency or a person designated in the said notice to make, use or sell an invention to which a patent or a patent application for a patent relates, subject to payment of equitable remuneration to the owner of the patent or the applicant." The Ministry of Agriculture and Food will improve the legislation to protect public health and nutrition by regulations, which will be in compliance with international standards, especially regulations dealing with genetically modified organisms. Several decisions of the Council of Ministers establish procedures for granting compulsory licenses on public interest grounds.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 2. Please state how your legislation provides for the protection of the exclusive rights of authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS Agreement which requires Members to comply with Articles 1-21 of the Berne Convention and the Appendix to the Berne Convention (1971)).
Albanian Law on Copyright (Law No. 7564, dated 19 May 1992 and its amendments) is in compliance with Articles 1-21 of the Berne Convention. Article 1 of this Law provides for the protection of the literary, artistic, public and other works including any original intellectual creation of this nature. The protection does not depend on the manner and form of expression, neither on the quality or the aim of the work. And it is not extended to ideas, procedures, processes, systems, ways of action, concepts, expressed principles or discoveries. Article 4 deals with moral rights stating that even if the economic rights have been transferred by his desire, the author has the right to: a) claim authorship of the work, especially the right to write his name on the copies of the work. When allowed by practice and in conformity with the tradition, his name may accompany his work mentioned in public; b) remain anonymous or use a pseudonym; c) object to any distortion, mutilation or modification and to other derogatory action in relation to his work, which would be prejudicial to his honour or reputation; d) object the joint authorship put in an arbitrary way from other persons because of different reasons. And Article 5 refers to economic rights stipulating that the author shall have the exclusive right of authorizing: a) the reproduction of the work; b) the importation of the work, with the purpose of its distribution (selling, leasing, renting, loaning) to the public; c) the translation of the work; d) the preparation of adaptations, alterations or other alterations of the work; e) the public recitation of the work; f) the communication of the work to the public by broadcasting and rebroadcasting; g) the communication of the work to the public by wire or other means.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 3. Please describe the protection accorded to authors of computer programs, databases or compilations of data.
Article 1 a) of the Law on Copyright, as amended by Law No. 8594 dated 6 April 2000 stipulates that this Law protects written works including computer programs whether in source or object code. Treating derived works and collections, Article 2 underlines that the same protection as to the works is applied to: a) translations, adaptations, arrangements, and other alterations of works and folkloric materials; b) collections of works, popular sayings or data and facts as encyclopaedias, anthologies and other sources of data which, by reason of the selection and arrangement of their contents constitute original creations. As regards economic rights, Article 5 of the Law states that the author of an audiovisual work, or any other work like phonograms, computer programs, databases and of any other work readable in machine, has the exclusive right to authorize giving on lease of his work.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 4. Please state whether your legislation provides for a rental right and, if so, the works to which it applies.
Article 5 b) of Copyright Law stipulates that the author shall have the exclusive right of authorizing the importation of the work, with the purpose of its distribution (selling, leasing, renting, and loaning) to the public. And, further on: "the author of an audiovisual work, or any other work like phonograms, computer programs, databases, and of any other work readable in machine, has the exclusive right to authorize giving on lease of his work." Dealing with the producers of phonograms, Article 35 c) underlines that no one can lease or loan copy of the phonogram without the authorization of the producers of phonograms.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 5. Please describe the rights granted to performers, producers of phonograms (sound recordings) and broadcasting organisations under your legislation.
Article 34 of Law on Copyright provides for the protection of performers and states that no one can undertake the following acts without the authorization of the performers: 1. The broadcasting of their programmes, except for the cases when the programme consists of: a) a fixation of the performance, excluding the registration done according to the provisions of Article 39; b) a re-broadcasting authorized by the organization, which has broadcasted the programme for the first time. 2. The communication to the public of their performance, except for the cases when this performance consists of: a) the fixation of the programme; b) the broadcasting of the performance. 3. The fixation of the unfixed performance. 4. The reproduction of fixation of their performance in the following cases: a) when the performance is fixed before, without the authorization of the performers; b) when the reproduction is done for purposes other than those authorized by the performers; c) when the performance is first fixed in compliance with the provisions of Article 35, but the reproduction is done for purposes other than those defined in that article. In case of absence of a contractual agreement that provides otherwise or of absence of such employment conditions from which results the contrary: a) the authorization to broadcast does not mean authorization to grant license to other organizations for the broadcasting of the performance; b) the authorization for broadcasting does not mean authorization to fix the performance; c) the authorization for the fixation of the performance and the reproduction of the fixation does not mean the authorization to broadcast the performance; d) the authorization for broadcasting and fixing the performance does not mean authorization for reproduction and fixation. The provisions of the first and second paragraph, parts (c) and (d) are not applicable from the moment that the performers give the authorization to include their performance in a visual and audiovisual fixation. None of the paragraphs of this article takes off the right of the performers to sign contracts in more favourable conditions for their performances. In Article 35, which deals with the protection of the producers of phonograms, it is stated: Without the authorization of the producers of phonograms no one can: a) reproduce directly or indirectly the phonogram; b) import any copy of the phonogram; c) lease or loan copy of the phonogram. Treating the protection of broadcasting organizations, Article 37 underlines that no one can undertake the following acts without their authorization: 1) the re-broadcasting of their programmes; 2) the fixation of their programmes; 3) reproduction of the fixation of their programmes: (a) when the fixation on which bases a reproduction is done, is realized without the authorization of these organizations; or b) when the broadcasting is firstly fixed in accordance with the provisions of Article 39, but the reproduction is done for other purposes from those mentioned in that article.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 6. Please state whether your legislation provides for any limitation or exception in relation to each of the rights described above in accordance with the relevant provisions of the Berne and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Articles 6 to 16 and Article 38 deal with limitations of the economic rights of the author defining as lawful reproductions which are permitted without the authors approval and without payment or remuneration; the reproduction for personal use; that given in the form of citation; use for teaching; reproduction from libraries and archives with the purpose of storing or replacing of a copy, (in case of loss, damage etc); reproduction for legal and administrative purposes; for giving information; use of pictures of publicly exposed works; reproduction or adaptation of a computer program if this copy or adaptation is indispensable for the use of the computer program and for the purpose the program is legally obtained or if it is used for archives and if necessary (in case of loss, damage or overuse) to replace the legally obtained copy (the copy or the adaptation provided for in the first paragraph is destroyed in cases when the ownership of the copies of the computer programs is no longer legal); the reproduction of the code and the adaptation (upon some conditions) that are necessary to get the required data for the interaction of a computer program which is created independently of the other programs; recording for temporary use by a broadcasting organization and with its own means and the performance of a work during the activity of a school institution when it is prepared and listened by the staff.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 7. Please state the terms of protection of each right described above and the work or subject matter to which it applies.
According to Law No. 7923, dated 19 April 1995, Article 1, the terms of protection are as follows: Moral rights are protected permanently. Economic rights: - Copyright: the lifetime of the author and 70 years after his death. - Works of applied art: moral and economic rights protected for 25 years from the making of such works. - Rights of performers: 50 years, starting from the end of the year in which the performance has taken place. - Rights of producers of phonograms: 50 years, starting from the end of the year, in which the phonogram has been produced for the first time. - Rights of broadcasting organizations: 50 years, starting from the end of the year, in which the broadcasting has taken place.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 8. Please state how your legislation grants the retroactive protection provided pursuant to Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS Agreement) and Article 14.6 of the TRIPS Agreement.
The retroactive protection according to Article 18 of the Berne Convention is provided by Article 6 of Law No. 8594 dated 6 April 2000, which replaces Article 51 of the previous law and stipulates that: "the provisions of this law shall apply to works created before the moment this law came into force but have not yet fallen into the public domain through the expiry of the term of protection afforded under this law".
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 9. Please give the definition of a sign under your national legislation and explain under what conditions it is protectable.
Article 73 of the "Law on Industrial Property" (1994) gives the definition of a sign and under what conditions it is protectable. According to this Article: 1. Any sign or any combination of signs capable of distinguishing the goods or services of one natural or legal person from those of another natural or legal person and of being represented graphically may serve as a mark for goods or a mark for services (hereinafter referred to as "mark"). 2. A collective trademark is a trademark registered by an industrial or commercial cooperation, or an association or the like organisation of several enterprises, and which is used in order to designate the goods and services of this association. Each enterprise of this association may also simultaneously, have its own trademarks. Particular provisions on collective trademarks are prescribed in specific articles of this Law, but in other cases, the provisions prescribed to trademarks also apply to collective trademarks. 3. The following signs may constitute a mark - words, including personal names, letters, numerals, abbreviations; - figurative signs, including devices, shapes of goods or of their packaging; - combinations of colours and shades of colours; - any combination of the signs referred to in items (a) to (c) of this Article. 4. Specific types of trademarks such as sound and light signals or other signs may be registered, if they can be graphically represented.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 10. Please confirm whether or not services are a protectable subject matter in your trademark law. Please confirm if signs, such as trade names, are protectable. Please describe if elements such as sound, perfumes and containers are protectable.
According to Article 73, paragraph 1 of the law any sign or any combination of signs capable of distinguishing the goods or services of one natural or legal person from those of another natural or legal person and of being represented graphically may serve as a mark for goods or a mark for services. In compliance with this paragraph, trade names are considered as signs and can be protected. And, as it is stated in Article 8 of Paris Convention, the Albanian Law on Industrial Property includes no provision that obliges the registration or the depositing of a trade name. Article 18 of the Law "On the Provisions that Regulate the First Part of the Commercial Code" sets forth that within one month from the day of the beginning of a commercial activity, the tradesman should announce his name and deposit his original signature at the court appointed to keep the commercial register. According to Article 73, paragraph 3 and 4, sounds and containers are also protectable (see the answer of question 1).
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 11. Please explain what the requirements of use are, if any, as a condition for a trademark registration. Please explain the definition of use and the conditions of maintenance of a registration in that respect.
According to Article 92: 1) The registration of a mark may be revoked if the owner of the registered mark has not used it in connection with the goods or services referred to in the registration during a period of three years, without good reason (as amended by Law No. 8477, dated 22 April 1999). 2) A request to revoke the registration of a mark on the ground of the above-mentioned paragraph may be submitted to the Court by any interested party. The Court shall inform the Patent Office of its decision within 1 month from the date the decision is adopted. 3) A registration may not be revoked on the ground of paragraph 1 of this Article, in the case of any of the following uses of the registered mark in connection with the goods or services referred to in the registration: a) use made under a licence contract recorded in the register of marks; b) use of the mark in a modified form, which does not alter its distinctive character; c) use of the marks in publicity and business correspondence. 4) Any revoked registration shall cease to have effect on the date, which the revocation becomes effective. 5) The Patent Office shall record the revocation in the register of marks and publish the revocation of the mark and any other alteration made on the ground of this Article.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 12. Please confirm whether or not your legislation permits that the registration of trademarks be indefinitely renewable.
Yes, it is possible, according to Article 86 which states: 1) The registration of a trademark and service mark is made for 10 years counted from the filing date. 2) The application for the renewal of a registration contains the following elements: a) a request for the renewal of the registration; b) the name and the address of the owner of the registered mark; c) the date and the registration number of the registration concerned; d) the name and the address of the representative, if any; e) the names of goods and/or services grouped according to the International Classification of the Goods and Services, for which the renewal of the registration is sought; f) the signature of the owner of the registered mark or his representative, if any. 3) The registration of a mark may be renewed, on payment of the prescribed fee, for additional terms of 10 years.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 13. Please describe the special requirements, if any, prescribed by your legislation concerning the use of a trademark.
Article 92, paragraph 3 a), b) and c) gives some requirements concerning the use of a trademark: A registration may not be revoked on the ground of paragraph (1) of this Article, in the case of any of the following uses of the registered mark in connection with the goods or services referred to in the registration: a) use made under a licence contract recorded in the register of marks; b) use of the mark in a modified form, which does not alter its distinctive character; c) use of the marks in publicity and business correspondence.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 14. Please explain whether or not your trademark registration authority refuses a trademark application if it contains a geographical indication.
Article 74, paragraph 1 b) gives the power to the trademark registration authority to refuse a trademark application if it contains a geographical indication: A mark shall not be registered as a trademark if it consists exclusively of signs or indications, which may serve in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin, or the time of production of the goods or of rendering the services, or other characteristics of the goods or services.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 15. Please give the definition of a geographical indication in your legislation.
This kind of definition is given in Article 93, paragraphs 1, 2, 3 of the law: 1) The appellation of origin is used to mark the natural agricultural products, the industrial and handicrafts products. 2) The appellations of origin protect: a) geographical names of products, whose distinctive properties are mainly due to the location or region where they are produced, if such properties are a natural consequence of either the climate or soil or of established manufacturing procedures or processes; b) the name of a product which has become generally known through long term use in the course of trade as an indication that the product originates from a certain location or region. 3) Geographical names which have become generally known through long-term use in the course of trade as designations for certain kinds of products may not be protected by appellations of origin.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 16. Please describe and explain the provisions of your legislation establishing a link, if any, between the characteristics of an indication and its geographical origin.
The link between the characteristics of an indication and its geographical origin is established by Article 93, paragraph 2 of the "Law on Industrial Property" (1994) and Articles 13 and 14 of the Law "Some changes and supplements to the Law on industrial property" (1999). According to these articles: The appellations of origin protect: a) geographical names of products, whose distinctive properties are mainly due to the location or region where they are produced, if such properties are a natural consequence of either the climate or soil or of established manufacturing procedures or processes; b) the name of a product which has become generally known through long term use in the course of trade as an indication that the product originates from a certain location or region. Persons not authorized to use an appellation of origin may not use such appellation even if they add the words "type", "style", "fashion", "produced as" or similar words. (Article 13) The protection of the appellation of origin shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory. (Article 14)
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 17. Please describe how additional protection is granted by your legislation to wines and spirits. Please mention other types of products, if any, covered by this additional protection.
The Law on Industrial Property does not have any special provisions for additional protection granted to wines and spirits. Article 93.1 of this Law defines goods protected by appellation of origin as natural, agriculture, industrial and handicraft products. This also includes protection for wines and spirits. However, in the Law "On the viniculture, wine and other products deriving from grape" (Law No. 8443 dated 21 January 1999) and its regulation, both administrated by the Ministry of Agriculture and Food, there are well defined criteria concerning the denomination of controlled origin.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in your jurisdiction. Please provide examples of the use of the exceptions by courts or lists of names considered as generic in your jurisdiction.
Exceptions like those foreseen in Article 24 of the TRIPS Agreement do not exist yet in Albanian legislation. Some of them will be provided for in new amendments in the near future. It is up to the Albanian Patent and Trademark Office to decide case by case during the examination procedure whether or not a name is generic.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 19. Please explain whether or not your legislation extends to the protection of designs dictated essentially by technical or functional considerations. Please explain how textile designs are protected.
In Article 39 of the Law it is stated: 1) For the purposes of the Law, "industrial design" (hereinafter referred to as "design") means the features of the appearance of a product which are not dictated solely by the technical function of the product and which confer to it a special appearance. The designs may be two or three dimensional or a combination of them. 2) a) In order to be protectable, an industrial design must be new and usable in industrial or handicraft products. b) An industrial design shall be considered to be new if it is not identical or closely similar to an industrial design which by publication or by public use has been made available to the public, anywhere in the world, before the filing date or, where priority is claimed, before the priority date of the application for the registration of the former design. c) Subparagraph 21 of this Article shall not apply in respect of any publication or public use which was made by the creator of the industrial design or his successor in title within a period of 12 months prior to the filing date of the application or, where priority is claimed, the priority date. Industrial designs are protected like other designs.
28/04/2003
IP/Q/ALB/1, IP/Q2/ALB/1, IP/Q3/ALB/1, IP/Q4/ALB/1 Albania Unión Europea 20. Please explain how your legislation protects right holders of a design against importing of articles bearing embodied or copied design.
These rights are protected by Article 67 of the law, which reads: 1) The owner of the registered design shall have the right to prevent third parties from making, importing, offering to supply or distributing, or having in their possession for these purposes, any products that incorporate the registered design or closely similar design, when such acts are undertaken for commercial purposes. 2) Paragraph (1) of this Article shall not have effect in respect of mentioned products in that paragraph, which have been put on the market in the territory of the Republic of Albania, or in any territory specified in bilateral or multilateral agreement of the Republic of Albania. 3) The rights conferred by the registration shall not extend to equipment on ships, aircraft and any other vehicles not registered in the territory of the Republic of Albania, when these temporarily enter in the territory of the Republic of Albania, as well as the importation of spare parts and accessories for the purpose of repairing such vehicles and the execution of repairs on such vehicles.
28/04/2003

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