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 672 de 677   |   Número de documentos : 13533

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IP/Q4/USA/1 Estados Unidos de América Unión Europea 7. With regard to cases that involve the infringement of intellectual property, could the Government of the United States 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;
See table 1 in the response to question 1 for the number of law suits that have been filed annually in connection with copyrights, patents and trademarks since 1993. As noted in response to question 1, cases are not tracked individually and so it is not possible to determine the average length from filing to final judgment.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - injunctions that have been issued (as defined in Article 44 of the TRIPS Agreement) and explain how such injunctions are being enforced;
Statistics on the number of injunctions issued are not compiled separately for intellectual property cases. Injunctions can be enforced by Federal marshals pursuant to 28 U.S.C. § 566. In order to provide information responsive to this request, the US Government asked US industry groups for information regarding civil actions. The following chart summarizes the information received in response to that request. US COPYRIGHT ENFORCEMENT STATISTICS: FEDERAL CIVIL ACTIONS (1996 AND 1997 (JANUARY-30 JUNE 1997)) [Part of the response is in Table format]
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - 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);
See the reply to question 1. As noted in reply to question 2, the figures in table 2 in the reply to question 1 indicate that right holders make frequent use of temporary restraining orders, preliminary injunctions, ex parte seizures and other provisional remedies in intellectual property enforcement cases, so that only a small percentage of cases filed proceeds to final judgment.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - suspensions at the border of counterfeit trademark/pirated copyright goods or in relation to goods where other intellectual property rights are infringed;
[Part of the response is in Table format] Source countries for the largest total domestic value over the period include the following countries: [Part of the response is in Table format]
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - 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;
The Executive Office of United States Attorneys (EOUSA) in the US Department of Justice is charged with compiling statistics regarding cases referred to the Department of Justice by other federal agencies for prosecution under federal criminal laws. The statistics include only cases reported to the EOUSA and do not include cases prosecuted under state criminal laws. Those statistics also do not reflect the imposition of criminal fines which can either supplement or substitute for imprisonment. Copyright-related Criminal Provisions Three Federal crimes, 18 U.S.C. §§ 2318, 2319 and 2319A, relate to copyright infringement. In fiscal years 1996 and 1997, the reported statistics indicate that a total of 146 defendants were prosecuted under these statutes, with 67 being convicted after a plea or trial. Of those convicted, 20 received jail sentences. The following tables contain reported statistics for fiscal year 1996 and 1997, segregated by statutory provision, and preceded by a brief description of each offence. Title 18, United States Code, Section 2318 (18 U.S.C. § 2318) – Trafficking in Counterfeit Labels for Phonorecords, and Copies of Motion pictures or Other Audiovisual Works. Offence: knowingly trafficking in a counterfeit label affixed or designed to be affixed to a phonorecord or a copy of a motion picture or other audiovisual work. [Part of the response is in Table format] Title 18, United States Code, Section 2319 (18 U.S.C. § 2319) – Criminal Infringement of a Copyright. Offence: willful infringement of a copyright for purposes of commercial advantage or private financial gain. [Part of the response is in Table format] Title 18, United States Code, Section 2319A (18 U.S.C. § 2319A) – Unauthorized Fixation of and Trafficking in Sound Recordings and Music Videos of Live Musical Performances. Offence: without the consent of the performer, knowingly and for purposes of commercial advantage or private financial gain, fixing the sounds or sounds and images of a live musical performance, reproducing copies of such a performance from an unauthorized fixation, transmitting the sounds or sounds and images to the public, or distributing, renting, selling, or trafficking (or attempting the preceding) in any copy of an unauthorized fixation. [Part of the response is in Table format] In order to provide some information regarding fines and monetary restitution, information not maintained by EOUSA, the Government of the United States requested the assistance of copyright industry groups. The following charts contain information supplied by those industry groups, as well as information on state criminal actions. US COPYRIGHT ENFORCEMENT STATISTICS: FEDERAL CRIMINAL ACTIONS Fines and Monetary Restitution (1996 and 1997 (January – 30 June 1997)) [Part of the response is in Table format] US ENFORCEMENT STATISTICS: STATE CRIMINAL ACTIONS (1996 and 1997 (January – June 30, 1997)) [Part of the response is in Table format] Trademark-related Criminal Provision: Reported information regarding criminal actions in connection with trademark rights are summarized in the table below, following the description of the relevant criminal law. Title 18, United States Code, Section 2320 (18 U.S.C. § 2320) – Trafficking in Counterfeit Goods or Services. Offence: intentionally trafficking or attempting to traffic in goods or services and knowingly using a counterfeit mark on or in connection with such goods or services. [Part of the response is in Table format]
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - seizures and/or destruction of counterfeit trademark and pirated copyright goods.
EOUSA does not maintain statistics on quantity or value of property seized pursuant to criminal prosecution or information on whether forfeited property has been destroyed.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea Furthermore, could the Government of the United States 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);
For copyright, see 17 U.S.C. § 504; for trademarks including certification marks, see 15 U.S.C. § 1117; for patents and industrial designs, see 35 U.S.C. § 284; for integrated circuit layout designs, see 17 U.S.C. § 911; for trade secrets, reference would be made to the appropriate state law. Calculation of damages is based on the evidence provided by the parties.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - 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;
For copyright, see 17 U.S.C. § 505; for trademarks, including certification marks, see 15 U.S.C. § 1117; for patents and industrial designs, see 35 U.S.C. § 285; for integrated circuit layout-designs, see 17 U.S.C. § 911; and for trade secrets, refer to the appropriate state law. As with damages, calculations are based upon the evidence presented by the parties.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - whether attorney's fees can be reimbursed and how such fees would be calculated;
Attorney's fees can be reimbursed in accordance with the sections of law cited above. Fees would be calculated based upon the evidence presented by the parties.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea - whether Article 45.2, second sentence, of the TRIPS Agreement has been implemented in the United States and how such "damages" would be calculated?
In connection with some forms of intellectual property, judicial authorities have such authority and with others such authority is limited. See above-referenced provisions of law. Such damages would be calculated based upon the evidence presented by the parties.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea (Follow-up questions from the EC) As set forth in question 7, please provide practical examples with respect to the following: (a) how the compensation for damages for the infringement of intellectual property rights is calculated (Article 45.1 of the TRIPS Agreement); (b) what would be regarded as "expenses of the right holder" which have to be reimbursed pursuant to Article 45.2, first half of the sentence and how they would be calculated; and (c) on what basis "damages" as set forth in Article 45.2 would, in fact, be calculated?
See the answer to the follow-up question to question 2 above.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea Could the US explain in detail the conditions for the grant of a preliminary injunction or temporary restraining order in intellectual property right-related cases?
To obtain a preliminary injunction, courts have generally required that the moving party demonstrate some or all of the following: a substantial likelihood that it will prevail on the merits of its case; that it will suffer irreparable injury if preliminary relief is not granted; that the threatened injury to it outweighs the harm an injunction might cause the defendant; and that the preliminary injunction will not have a serious adverse effect on the public. A temporary restraining order (TRO) may be granted by a court where it clearly appears from specific facts shown by an affidavit or by a verified complaint that immediate and irreparable injury will result before the adverse party or his attorney can be heard in opposition, and the complainant’s attorney has certified to the court, in writing, the efforts which have been made to give notice and the reasons supporting his claim that notice should not be required. See Rule 65, Federal Rules of Civil Procedure.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea Could the US explain in detail the conditions applied and the scope of the right conferred when preliminary relief is granted giving the right to obtain evidence inaudita altera parte?
Security is required as a condition for obtaining a TRO or a preliminary injunction in an amount sufficient to cover costs and damages to the party wrongfully enjoined or restrained. Temporary restraining orders expire within ten days unless extended for good cause shown or if the adverse party consents to a longer period. A motion for preliminary injunction must be scheduled for a hearing at the earliest possible time and, the party obtaining the TRO does not proceed with the request for preliminary injunctions, the TRO will be dissolved. See Rule 65, Federal Rules of Civil Procedure. The function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. The scope of the preliminary injunction depends upon the facts of the particular dispute.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea If indeed there exists no statistical data on the time and cost (including official and legal fees) required to obtain such preliminary relief, could the US provide estimates?
Because the factors influencing the cost and time of obtaining relief, permanent or preliminary, are so many and varied, the US Government cannot provide estimates.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea 8. Section 337 of the United States Tariff Act, as amended, gives United States' right holders the possibility to request the United States International Trade Commission to declare unlawful, under certain conditions, the importation or sale of articles that infringe valid United States' patents, registered trademarks, registered copyrights or registered mask works of a semiconductor chip product. Please explain why this procedure is limited to foreign goods and not extended to domestic products. Against this background, please also explain how such legislation complies with the United States' obligations under the relevant WTO Agreements.
The United States amended Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, as part of our implementation of the Uruguay Round results. As stated in the "Statement of Administrative Action" accompanying the Uruguay Round Agreements Act, those amendments bring US procedures into conformity with national treatment obligations under GATT 1994, while providing for effective enforcement of intellectual property rights at the border. Moreover, the procedures applied under Section 337 fully comply with Article 49 of the TRIPS Agreement in that they "conform to principles equivalent in substance to those set forth" in Section 2 of the TRIPS Agreement. For example, each element of Articles 41 and 42 of the TRIPS Agreement are met in the context of a Section 337 proceeding. The TRIPS Agreement, negotiated after a panel report was issued finding that certain aspects of Section 337 were inconsistent with Article III of GATT 1947, recognizes that it may be necessary to treat domestic and imported products differently to enforce intellectual property rights effectively in respect of imported goods. The 1994 amendments to Section 337 made the following changes to USITC procedures to implement the panel’s recommendations: - Elimination of the requirement that the USITC issue a final determination within a fixed period of time. Instead, the amendment provides that the ITC must complete its investigation "at the earliest practicable time". To promote rapid adjudication, the USITC must establish a "target date" for completion of an investigation within 45 days after it is initiated. These requirements parallel the procedures set out in recently revised Rule 16 of the Federal Rules of Civil Procedure providing district courts with various mechanisms for expediting litigation. They are also consistent with district court efforts to avoid delay, such as by establishing target dates for the completion of various stages of litigation; - Means to prevent infringement proceedings being brought against imported goods in two forums at the same time. A district court hearing an infringement case is required to stay its proceedings, at the request of a respondent in a Section 337 proceeding, in respect of any claim that involves the same issues as those pending before the ITC. Such issues would include questions of patent validity, infringement, and any defences that might be raised in both proceedings. The district court may use its discretionary authority to stay any other claims in the case.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea [Follow-up question from the EC] Could the United States itself provide the same categories of statistics regarding its own situation as it has requested of all others in its two general follow-up questions on civil and criminal enforcement?
To the degree that such information is available, we have.
18/12/1998
IP/Q4/USA/1 Estados Unidos de América Unión Europea [Additional question from the EC] Under the United States regulations, since 1 January 1996 works in respect of which copyright has been restored are automatically protected under the Bern Convention and the TRIPS Agreement but the enforcement of this protection is subordinated to compliance by the copyright holders with the "notice of intent to enforce" procedure with regard to users of the works (17 U.S.C., paragraph 104 A(d) (2)). Since 1 January 1998, it has no longer been possible to use the general notification procedure ("constructive notice") filed with the Copyright Office; hence the only means of enforcement open to copyright holders is the individual notification procedure, which is very difficult to do in practice as it implies identifying the United States users and sending them a personal notice. In the circumstances, the United States Government should clarify whether the automatic character of the protection granted to these works enables copyright holders to bring a civil or criminal action against infringers even absent a general or individual notification, and describe the conditions in which such actions may be brought, the evidence available to the copyright holder and the sanctions that may be imposed on infringers. The steps that have to be taken under the individual notice procedure are long, complex and costly: the United States Government should therefore explain how this procedure is consistent with Article 41.1 of the TRIPS Agreement, which provides that enforcement procedures shall permit effective action against any act of infringement of intellectual property rights and be applied in such a manner as to avoid the creation of barriers to legitimate trade; and with Article 41.2, which provides that procedures concerning the enforcement of intellectual property rights shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
As noted in the question itself, works in respect of which copyright has been restored in the United States receive protection automatically without the need for compliance with any formality. 17 U.S.C. § 104A(a)(1)(A). The European Communities and their Member States are incorrect, however, that enforcement of this protection generally requires compliance with the "notice of intent to enforce" procedures set out in the law. Service of a notice of intent to enforce is required only with respect to a claim against a person who used the work in certain ways prior to restoration-a "reliance party", as defined in the Copyright Act (§104(h)(4)) and only if the copyright owner has not filed such a notice with the Copyright Office within the two-year period set out in the Act (§104A(d)(2)(A)). As to all other users of restored works - the vast majority of infringement claims - the copyright owner can proceed with an infringement case in the same manner and to the same extent as for a newly created work. See §104A(d)(1) (Enforcement of Copyright in Restored Works in the Absence of a Reliance Party). Accordingly, the "notice of intent to enforce" procedures apply only in a narrow category of circumstances. As explained by the United States in response to question 5 from the European Communities and their Member States in connection with the July 1996 TRIPS Council Review of Copyright Legislation, this approach to restoration of works in the public domain is fully consistent with the requirements of Berne Article 18 and Articles 9 and 14.6 of the TRIPS Agreement, as a reasonable and limited "condition of application" of the principle of retroactive protection, to deal with the special situation of those who have in the past invested in the use of material then in the public domain. In response to the request for a description in the second paragraph of the question, the conditions in which infringement actions may be brought with respect to restored works, the evidence available to the copyright owner, and the sanctions that may be imposed on infringers, are all identical to those involved with respect to any other copyrighted work. Finally, the United States disagrees with the question's characterization of the notice procedure as "long, complex and costly". The procedure could not be simpler or more inexpensive. It merely entails sending a short statement on a piece of paper, in no particular format, signed by the copyright owner. The statement must set out the basic facts necessary to indicate a claim: the work's title (including a translation or alternative titles), the address and telephone number of the copyright owner, the use to which the copyright owner objects, and, in the case of a derivative work based on the restored work, an identification of that derivative work. While service of a notice does necessitate locating the reliance party in the United States, this is no more difficult than identifying any infringer located in another country.
18/12/1998
IP/Q4/ZAF/1 Sudáfrica 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. Please describe the structure of the judicial and administrative procedures in South Africa in which parties can enforce their intellectual property rights, at local, provincial and national levels, indicating the jurisdiction of each type of court or administrative body and explaining the interrelationships, if any, of the various types of courts and administrative bodies. Cite the laws or other authorities establishing the structure, including each type of court and administrative body.
Intellectual property rights can be enforced in South Africa by way of infringement proceedings in a court of law having jurisdiction. The relevant courts having jurisdiction in intellectual property infringement cases are: (a) The various provincial and local divisions of the High Court of South Africa have jurisdiction in cases of trademark, copyright and design infringement. Proceedings in the High Courts are regulated by the Supreme Court Act No. 59 of 1959 and the Rules of the Supreme Court. (b) The Court of the Commissioner of Patents has jurisdiction in cases of patent infringement (Section 8 of Patents Act No. 57 of 1978, Regulations 76-100 of the Patent Regulations). (c) The local and regional Magistrates' Courts of South Africa have jurisdiction in cases of copyright infringement where the quantum of the claim is below R 100,000. However, these "lower" courts are seldom, if ever, used in civil intellectual property cases. The proceedings in the Magistrates' Courts are regulated by the Magistrates' Courts Act No. 32 of 1944. (d) There are no administrative bodies having jurisdiction to enforce intellectual property rights in South Africa.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 2. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in each of the Courts and administrative bodies identified in response to question 1 and cite the legal authorities establishing those procedures.
Procedures in infringement actions NB: Please note that the superior courts in South Africa were previously known as the Supreme Court; they have now been named High Courts. The appeal court is known as the Supreme Court of Appeal. The procedure in infringement proceedings is in accordance with the law and Rules governing procedure in civil cases in the High Court. (a) The procedural steps for copyright and design infringement actions under the relevant High Court Rules are as follows: (1) The action is commenced by the issue of a combined Summons supported by a Power of Attorney and a Resolution (if the Plaintiff is a company). If the Power of Attorney is executed outside the Republic of South Africa it must be legalized. The combined Summons must be in the prescribed form and shall have annexed to it a statement of the material facts relied on by the Plaintiff in support of his claim. (2) Within ten Court days (which excludes Saturdays, Sundays and Public Holidays) from the service of the combined Summons on the Defendant, or within 21 days if the Defendant resides more than 80 kilometres from the nearest railway station, the Defendant must deliver a Notice of Intention to defend. (3) Within 20 Court days after the delivery of the Defendant's Notice of Intention to defend the Defendant must deliver his Plea setting out his defences plus any claim in reconvention. Failure by the Defendant to deliver such Plea and/or claim in reconvention within the prescribed time entitles the Plaintiff thereafter to serve notice on the Defendant requiring the Defendant to Plead within five Court days, failing which the Defendant is barred from pleading. (4) Within 15 Court days after delivery of the Defendant's Plea and/or Claim in Reconvention the Plaintiff must deliver his Replication and/or Plea to the Claim in Reconvention. (5) Within ten Court days from the delivery of the Plaintiff's Replication and/or Plea to the Claim in Reconvention the Defendant must file his Replication in Reconvention. (6) Any further pleadings must be delivered within ten Court days of any preceding pleadings. (7) Provision is made in the Rule for obtaining an interim interdict (i.e. a preliminary injunction) in appropriate cases, applying to have portions thereof struck out where appropriate, or excepting to pleadings. (8) After the close of pleadings there are certain interlocutory proceedings, e.g. Discovery Affidavits in which the parties must disclose all books and documents that may be relevant to the issues involved, inspection of the documents so disclosed, inspection of premises or processes where required, commissions to take evidence abroad, etc. In terms of the Rules of the Supreme Court it is essential that before a Plaintiff's attorney can set the action down for hearing he must arrange a pre-trial conference with the Defendant's attorney with a view to securing curtailment of the duration of the hearing by, e.g. appropriate admissions, disclosure of documents, etc. Before the trial each party must deliver to the other a summary of the opinions of each expert witness he intends to rely on and the reasons for such opinions as well as copies of any plans, diagrams, models, photographs, etc., on which it is proposed to rely in the action. (9) Finally, the matter is brought to trial before the Court at which oral evidence is given by witnesses who are subject to examination, cross-examination and re-examination. The time-limits referred to above can be, and in practice usually are, extended by consent of the parties or, failing such consent, the Court has power, in an appropriate case, to extend the time limits. The relevant provisions are set out in Rule 6 of the Uniform Rules of Court (for applications), and in Rules 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Rules for actions. (b) The procedure in patent infringement proceedings is in accordance with the law governing procedure in civil cases in the Transvaal Provincial Division of the High Court or in default thereof and where there is no relevant provision under the Patents Act No. 57 of 1978, in accordance with a direction given by the Commissioner of Patents. The procedural steps for patent infringement actions under the relevant High Court Rules are as follows: (1) The action is commenced by the issue of a combined Summons supported by a Power of Attorney and a Resolution (if the Plaintiff is a company). If the Power of Attorney is executed outside the Republic of South Africa it must be legalized. The combined summons must be in the prescribed form and shall have annexed to it a statement of the material facts relied on by the Plaintiff in support of his claim. (2) Within ten Court days (which excludes Saturdays, Sundays and Public Holidays) from the service of the combined Summons on the Defendant, or within 20 days if the Defendant resides more than 80 kilometres from the nearest railway station, the Defendant must deliver a Notice of Intention to Defend. (3) Within 20 Court days after the delivery of the Defendant's Notice of Intention to defend the Defendant must deliver his Plea setting out his defences, e.g. non-infringement and invalidity of the patent plus any claim in reconvention e.g. for revocation of the patent. Failure by the Defendant to deliver such Pleas and/or claim in reconvention within the prescribed time entitles the Plaintiff thereafter to serve notice on the Defendant requiring the Defendant to Plead within five court days, failing which the Defendant is barred from pleading. (4) Within 15 Court days after delivery of the Defendant's Plea and/or Claim in Reconvention the Plaintiff must deliver his Replication and/or Plea to the Claim in Reconvention. (5) Within ten days from the delivery of the Plaintiff's Replication and/or Plea to the Claim in Reconvention the Defendant must file his Replication in Reconvention. (6) Any further pleadings must be delivered within ten Court days of any preceding pleadings. (7) Provision is made in the Rules for obtaining an interim interdict (i.e. an interlocutory injunction) in appropriate cases, applying to have portions thereof struck out where appropriate, or excepting to pleadings. (8) After the close of pleadings there are certain interlocutory proceedings, e.g. Discovery Affidavits in which the parties must disclose all books and documents that may be relevant to the issues involved, inspection of the documents so disclosed, inspection of premises or processes where required, commissions to take evidence abroad, etc. In terms of the Rules of the High Court it is essential that before a Plaintiff's attorney can set the action down for hearing he must arrange a pre-trial conference with the Defendant's attorney with a view to securing curtailment of the duration of the hearing by, e.g. appropriate admissions, disclosure of documents, etc. Before the trial each party must deliver to the other a summary of the opinions of each expert witness he intends to rely on and the reasons for such opinions as well as copies of any plans, diagrams, models, photographs, etc., on which it is proposed to rely in the action. (9) Finally, the matter is brought to trial before the Commissioner of Patents at which oral evidence is given by witnesses who are subject to examination, cross examination and re-examination. The time-limits referred to above can be, and in practice usually are, extended by consent of the parties or, failing such consent, the Court has power, in an appropriate case, to extend the time limits. (c) There are generally two types of proceedings that may be instituted in trademark matters before the Court, namely, applications (motion proceedings) and actions (trial proceedings). (1) Applications (motion proceedings) - An application for relief is brought on notice of motion supported by affidavit evidence. - Copies of the notice and all annexes are served on every respondent. - If the respondent does not give timeous notice of any intention to oppose, the applicant may place the matter on the roll for hearing and seek the order on the specified date. - If the respondent intends opposing the application, he or she must file a notice of intention to oppose and then deliver an answering affidavit, if any, together with any supporting documents. - Once the answering affidavit is filed, the applicant may deliver a replying affidavit. - Application is then made for a hearing date and the matter is set down for argument. - If the application cannot properly be decided on affidavit, the Court may dismiss the application or make any appropriate order with a view to ensuring a just and expeditious decision. (2) Actions (trial proceedings) - An action is commenced by the issuing out of a summons and is normally accompanied by particulars of claim which comprise a statement of the material facts relied on by the plaintiff in support of his or her claim. - If the defendant intends to defend the action, he or she must deliver a notice of intention to defend within the prescribed time. - If a foreign defendant is involved, the plaintiff may first find it necessary to attach property in South Africa to found or confirm jurisdiction. The Act makes specific provision for the attachment of registered trademarks for this purpose. - If no notice of intention to defend is delivered, the plaintiff may apply for an order to be granted on an unopposed basis. - After the delivery of a notice of intention to defend, the defendant must deliver a plea setting out its defences and any counter-claim. - Failure by the defendant to deliver a plea within the prescribed time entitles the plaintiff to serve notice on the defendant requiring the defendant to plead within a certain time (notice of bar), failing which the defendant is barred from pleading. - After delivery of the defendant's plea and/or counter-claim the plaintiff may deliver a replication and plea to any counter-claim. - After the delivery of the plaintiff's replication and/or plea to the counter-claim the defendant must file a replication in reconvention. - After the close of pleadings, there are certain procedures, including discovery (in which the parties must disclose all documents and tapes which may be relevant to the issues involved), inspection of the documents so disclosed, inspection of premises or process where required, requests of particulars for trial and commissions to take evidence abroad. - Before the matter is set down for hearing, the plaintiff's attorney must arrange a pre-trial conference with the defendant with a view to securing curtailment of the duration of the hearing. - Before the trial, each party must deliver to the other a summary of the opinions of any expert witnesses on whom it intends to rely and the reasons for such opinions as well as copies of any plans, diagrams, models, photographs, etc. on which it is proposed to rely in the action. - Finally, the matter is brought to trial at which oral evidence is given by witnesses who are subject to examination, cross-examination and re examination. Both parties are then given an opportunity to argue their cases and, having heard the argument, the Court will in due course hand down its judgement.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 3. Please identify any requirement that a foreign party must meet to initiate a proceeding in the Courts and administrative bodies identified in answer to question 1 that is not required of a national or resident of South Africa and cite the legal authorities providing for those differences.
A foreign party is not required to meet any requirement not applicable to a national or resident of South Africa in order to institute proceedings for enforcement, except that the local party is entitled to ask for a (bank) guarantee that costs will be paid in the event of a cost order against the foreign party.
30/04/1999

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