Examen de la legislación de aplicación del Acuerdo sobre los ADPIC - Búsqueda

Restablecer
 
 

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.

En esta página puede hacer búsquedas en las preguntas y respuestas de los Miembros sobre las leyes y los reglamentos notificados. Puede consultar los resultados de la búsqueda en la pantalla, descargarlos en formato Excel e imprimirlos. También puede descargar los distintos documentos.

* NO es necesario utilizar todos los campos de búsqueda que figuran a continuación (rellene solo los que sean pertinentes para su consulta).
* Tenga en cuenta que los criterios de búsqueda utilizados son acumulativos. Todos se reflejarán en los resultados de la búsqueda.


Página 673 de 677   |   Número de documentos : 13533

Signatura del documento Miembro que presenta la notificación Miembro que plantea la pregunta Pregunta Respuesta Fecha de distribución del documento  
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 4. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards against abuse of judicial and administrative enforcement procedures, including provision for adequate compensation for injury suffered because of such abuse. Please describe the means available under the law of South Africa to prevent abuse of judicial and administrative procedures or to remedy damages suffered as a result of such abuse and cite the legal authorities for those means.
No specific indemnification provisions against abuse of enforcement procedures exist. However, if a defendant is wrongfully sued or joined in civil proceedings in the Courts, it will be able to set the proceedings aside and will be awarded its legal costs (on the punitive scale if appropriate) and any damages which it might have suffered as a result. Furthermore, in certain instances, the Court may require a plaintiff to furnish security for costs and/or damages.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 5. Article 41.2 addresses, among other things, the cost of judicial and administrative enforcement proceedings. Please describe any fees charged by judicial or administrative officials for filing legal actions involving intellectual property or for pursuing such actions once initiated, cite the legal authorities for such fees, and provide copies of the documents used to inform the public of such fees.
No fees are charged by judicial officials to file or prosecute legal actions involving intellectual property rights, except for the stamp duty payable on the issue of summons (which is the same for all matters, also those other than intellectual property).
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 6. Article 41.2 also addresses the timeliness of judicial and administrative enforcement proceedings. Please cite to the legal authorities establishing any time limits for judicial and administrative proceedings and, if it has not already been done, provide copies of the laws or regulations in question.
(a) No specific legal provisions exist governing the length or cost of legal proceedings. The Rules of Court set out clear time-limits for the various stages of civil proceedings. Extensions may be agreed to inter partes or the Court might grant extensions or condone late service in appropriate circumstances which will lengthen the duration of the proceedings. (b) The essential time-periods are set out in Rule 6 of the Uniform Rules of Court (for applications) and Rules 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Rules for actions. No statistical data is available on the actual duration of proceedings or their cost.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 7. Please explain any provisions in the enforcement system in South Africa 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.
Please see the reply to question 6 above.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 8. 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, with regard to each type of court and administrative body identified in question 1, whether judges or administrative officials must render their decisions in writing and cite the legal authorities requiring such written opinions.
Proceedings in the High Courts are recorded electronically, and litigants may apply for transcriptions of the recordings. Judgements are generally given in writing.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 9. Article 41.3 also requires that decisions on the merits of a case be based only on evidence in respect of which parties had an opportunity to be heard. Please state, with regard to each type of court and administrative body identified in question 1, what factors may be considered by a judge or administrative official in rendering a decision and cite the legal authorities establishing the basis on which judges and administrative officials may reach decisions.
As indicated in the answer to question 2 above, evidence in motion proceedings is generally by affidavit unless the Court directs otherwise. In actions, evidence is given orally. The evidence of expert witnesses as well as copies of plans, diagrams, etc. have to be made available to the other party before trial. Witnesses who give oral evidence are subject to cross-examination. In coming to a decision, a judge in the first place evaluates the evidence tendered in court, but he may take cognisance of other laws of the country, e.g. the provisions of the Constitution of South Africa.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 10. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial and administrative decisions in intellectual property enforcement proceedings. Please describe what legal limitations, if any, are placed upon the ability of a party to an intellectual property enforcement proceeding to have both procedural rulings and final decisions reviewed by a separate judicial authority, and cite the legal authorities providing for such reviews.
All procedural rulings and final decisions on the merits of South African courts are subject to review and/or appeal, with the exception of temporary interdicts (interlocutory injunctions). The current legal position in South Africa is that an interlocutory injunction (temporary interdict) is not subject to review nor to appeal. It is submitted that this position is not in conflict with Article 41.4, inasmuch as the decision in regard to an interlocutory injunction is not a decision on the merits of a case. An interlocutory injunction is based on a balance of convenience, and the merits of the case are specifically not decided. To succeed with a temporary interdict, the claimant merely has to show, prima facie, that there is a right which is or is about to be infringed, and that the balance of convenience favours the granting of a temporary interdict pending the finalization of the main proceedings. Furthermore, an interlocutory injunction is exactly that, namely a temporary order pending further court action; if such further court action does not follow within a reasonable period, the interlocutory injunction can be discharged. The order normally specifies a return date by which cause must be shown as to why the temporary interdict should not be made permanent, thus creating an opportunity for the respondent to state his case. The system is safeguarded against abuse in that the Court requires to be satisfied that the balance of convenience is in favour of the granting of such an interdict, and in considering this aspect the Court will consider the status and financial position of both parties, and will make the decision on the basis of the least measure of interference with the activities of a party.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 11. Article 42 requires that defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures followed by each type of court and administrative body identified in question 1 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.
In the case of infringement proceedings, whether by way of application or action, the notice of motion or the combined summons has to be served on every respondent by the applicant/plaintiff. The Court has to be satisfied that proper service took place. Receipt of service is usually endorsed on the original notice of motion/summons under the signature of the respondent or his authorized agent.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 12. Article 42 also requires that parties to intellectual property enforcement proceedings must be able to be represented by counsel and must not be subject to overly burdensome requirements to appear personally. Please describe any limitations under South Africa’s laws on the ability of a party in such a proceeding to be represented by independent legal counsel and any requirements imposed on the party to appear personally in a proceeding. Please cite the legal authorities providing such limitations and imposing such requirements.
Parties may personally represent themselves in the High Court or may be represented by an attorney (having the right of appearance) or an advocate of the High Court of South Africa. There is no requirement for mandatory personal appearance. If the right holder needs to give essential evidence in a trial action, a personal appearance in that sense is necessary. See also: Section 19(3) Patents Act No. 57 of 1978; Section 13 Designs Act No. 195 of 1993.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 13. Under Article 42, parties are to be entitled to substantiate claims and present relevant evidence. Please describe any limitations under the law of South Africa on a party’s ability to substantiate a claim or to present relevant evidence and cite the legal authority providing such limitations.
There are no limitations as envisaged in this question in the field of intellectual property law. There are, however, certain protective provisions such as Section 67(3) of Patents Act No. 57 of 1978 providing that a person need not disclose secret process information, if it appears to the Commissioner that it would be unreasonable to do so, in cases of an alleged infringing product made by a process for obtaining a new product.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 14. Article 42 requires, with one narrow exception, that there be a means to identify and protect confidential information during judicial and administrative intellectual property enforcement proceedings. Please describe the means provided under the law of South Africa for parties to identify and have protected confidential information required to be presented in order to prove their claims and cite the legal authorities providing for such identification and protection.
The protection of confidential information brought forward as evidence may be ordered by the High Court or the Court and the Commissioner of Patents in terms of their inherent powers. The litigant wishing to protect such information may make application to the Court (if agreement with the opposing party is not possible) for appropriate directions. Experience indicates that the Courts are generally sympathetic to such approaches in appropriate circumstances. Section 67 of the Patents Act, 1978, also contains certain provisions regarding non-disclosure of secret processes.15
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials be able to order a party to an intellectual property enforcement proceeding to produce relevant evidence in that party’s control identified by the opposing party when the latter party has presented reasonably available evidence in support of its claims. Please describe how and in what circumstances judges and administrative officials may order production of relevant evidence in intellectual property enforcement proceedings and cite the legal authorities providing for such orders.
Discovery and production of documents and tape recordings in the High Court of South Africa, and in the Court of the Commissioner of Patents, is dealt with in Rule 35 of the Uniform Rules of Court. Discovery will only be ordered after the institution of proceedings and generally only after the close of pleadings. In special cases, (such as the "Anton Piller" situation), the Court may order, on an ex parte basis, that certain evidence be taken into the possession of a sheriff for its preservation pending the institution of civil proceedings. Statutory provisions for Anton Piller-type orders have been enacted in the Counterfeit Goods Act No. 37 of 1997, in Section 11.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 16. Information ordered to be produced, referred to in question 15, must be protected if it is confidential. Please describe the means provided under the law of South Africa for protecting such information and cite the legal authority providing for such protection, if those means differ from those described in answer to question 14.
Please see the reply to question 14 above.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 17. Article 43.2 provides that, in the event a party refuses to provide information ordered by the judicial or administrative officials, those officials may be authorized to make preliminary and final determinations adverse to that party. Please describe what sanctions may be imposed on a party that refused to provide ordered information and under what circumstances those sanctions are imposed, citing the legal authority for those sanctions.
South African judicial authorities are very hesitant to order persons to disclose, verbally or by way of a written statement, particular information (as opposed to making available, through discovery or in special ex parte situations, specific documents and evidence). Such a practice in civil proceedings is generally unconstitutional in terms of the Constitution of South Africa. In the criminal context, the Counterfeit Goods Act, 1997, contains certain provisions regarding disclosure of information by a defendant.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 18. Article 44.1 requires that judicial and administrative officials be able to enjoin or otherwise prevent infringing activity by a party, including by preventing the entry of infringing goods into the channels of commerce in their jurisdiction. Please describe authority of the judges and administrative officials identified in question 1 to order parties to stop infringements and to prevent infringing goods from entering the channels of commerce in their jurisdiction immediately after clearance of such goods through customs. In addition, please cite the legal authorities authorizing such actions.
The relevant South African Courts are empowered to give relief in the form of an interdict (injunction) to stop infringement and to prevent infringing products to enter the market and the channels of commerce generally, by prohibiting the sale and/or offering for sale of such products. The Courts can also order the delivery up of infringing products; and in the case of trademark infringement, the removal of the infringing mark from all products, or where this is not possible, the delivery up of such products. See, e.g.: Section 65(3) Patents Act No. 57 of 1978; Section 34(3) Trade Marks Act No. 194 of 1993; Section 24(1) Copyright Act No. 98 of 1978; Section 35(3) Designs Act No. 195 of 1993.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 19. 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 South Africa and cite the legal authorities providing for those limitations.
The following provisions in South African intellectual property legislation are relevant to the subject-matter of this question: Patents Act No. 57 of 1978: - Section 4 Use by a Minister of State for public purposes (this Section has not to date been invoked). - Section 55 Compulsory licence in the case of a dependent patent (no record could be found of a successful application under this section). - Section 56 Compulsory licence in case of an abuse of patent rights (no record of successful application). - Section 78 The Minister (of Trade and Industry) may acquire an invention or a patent on behalf of the State (not yet invoked). - Section 79 The Minister of Defence may acquire, on behalf of the State, an invention or patent relating to armaments or defined in the Armaments Development and Production Act, 1968 (not yet invoked). - Section 15C of the Medicines and Related Substances Control Act 101 of 1965: the Minister of Health may determine that certain patent rights shall not apply to certain specified medicines (Act passed but not yet in force). Designs Act No. 195 of 1993: - Section 21 Compulsory licence in the case of an abuse of design rights (not yet invoked). Copyright Act No. 98 of 1978: - Section 45 The Minister (of Trade and Industry) may make regulations to prohibit or authorize the circulation, presentation or exhibition of certain works (not yet invoked). - Section 45A The Minister may make regulations regarding the reproduction or adaptation of certain artistic works (this section is not yet in operation).
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 20. Article 45.1 requires that judicial and administrative officials be able to order an infringer to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please describe the authority of the judges and administrative officials identified in question 1 to order a party found to be infringing to pay the right holder damages adequate to compensate for the injury caused by the infringement. Please explain the factors considered in establishing the amount of the compensation and cite the legal authorities authorizing such compensation orders.
In terms of the Patents Act, 1978 (as amended), the Trade Marks Act, 1993 (as amended), the Copyright Act, 1978 (as amended) and the Designs Act, 1993 (as amended), and the Rules governing procedure in the High Court and the Court of the Commissioner of Patents, these Courts are empowered, in cases of infringement, to order damages to be paid by the infringing party. All four of the Acts make provision for the award of damages (the normal basis being the actual patrimonial loss suffered) or, in lieu of damages, the payment of a reasonable royalty which would have been payable by a licensee for the use of the intellectual property right concerned. The Copyright Act also contains provisions (Section 24(3)) for the award of punitive damages. Damages may only be recovered by way of action. The Courts are also authorized to direct that an enquiry into damages is to be held for purposes of determining the amount of any damages or reasonable royalty to be paid.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 21. Article 45.2 requires that judges and administrative officials be authorized to order payment of a right holder's expenses, including legal fees. Please describe the authority of the judges and administrative officials identified in question 1 to order payment of right holders’ expenses, the circumstances under which such an order will be given, the factors considered in establishing the expenses, and cite the legal authorities authorizing such payments.
The Courts have inherent power to grant an order as to costs in favour of the successful litigant such costs generally, being attorneys' fees and disbursements or expenses. These are invariably awarded, in terms of the Rules governing procedure in the Courts, to the successful litigant on a scale prescribed by tariff. In certain cases, to express its displeasure at the manner in which a litigant has conducted itself, the Court may award punitive legal costs on a higher scale.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 22. Article 46 requires that judges and administrative officials be authorized to order, in certain circumstances, other remedies, including disposal of goods outside commercial channels or destruction of goods and destruction of materials and implements the predominant use of which is the creation of infringing goods. Please describe the additional remedies available under the laws of South Africa, the circumstances in which such authority will be exercised, the factors considered in determining the nature of the remedies provided, and cite the legal authorities providing for such remedies.
The South African Patents Act, Trade Marks Act, Designs Act and Copyright Act provide for the following remedies to be ordered in proceedings for infringement, namely: - interdicts (injunctions); - damages (see the reply to question 20); - delivery-up of infringing products (see the reply to question 18 above). The aforesaid four intellectual property statutes do not expressly provide that the purpose of the order for delivery-up of infringing goods is for the goods to be destroyed.
30/04/1999
IP/Q4/ZAF/1 Sudáfrica Estados Unidos de América 23. Article 47 provides that WTO Members may authorize judges and administrative officials to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution. Please describe any authority judges and administrative officials have under the laws of South Africa to order infringers to identify for right holders third parties involved in the production and distribution of infringing goods or services and their channels of distribution and describe the circumstances in which this authority would be exercised. Please cite the legal authorities providing for such remedies.
South African Courts held that they have inherent jurisdiction, in special ex parte situations, to grant Anton Piller order for specific documents and evidence to be disclosed. In the criminal context, the Counterfeit Goods Act No. 37 of 1997 contains certain provisions regarding disclosure of information by a defendant, including information regarding the identity of the supplier or source of the counterfeit goods in question. This latter Act prescribes certain safeguards to prevent abuse of powers. See in this regard the provisions of Section 5 of the Counterfeit Goods Act. The Counterfeit Goods Act also provides for the granting of an Anton Piller-type order authorizing the search for an attachment of evidence, pending institution of civil proceedings. Such an order may be granted on an ex parte basis. See in this regard Section 11 of the Counterfeit Goods Act.
30/04/1999

Página 673 de 677   |   Número de documentos : 13533

 
Restablecer