Liste de questions concernant les moyens de faire respecter les droits au titre de l'article 63:2 de l'Accord sur les ADPIC ‒ Afficher les détails du document

Eswatini

a) Procédures et mesures correctives judiciaires civiles

The High Court and the Supreme Court (Court of Appeal).
Owners of the intellectual property rights may be represented by intellectual property practitioners. There are no mandatory personal appearances before the court by the right holder.
Judiciary authorities are empowered to order an opposing party to produce evidence by the relevant legislation.
All intellectual property matters are treated with a high degree of confidentiality.
The legal system of Swaziland is the Common Law system which has absorbed certain principles of Roman Dutch Law. Matters relating to evidence, injunctions, damages and other remedies are dealt with under the general law of civil procedure for all civil wrongs.
The legislation does not provide authority to Judicial Authorities to order infringers to inform the right holder of the identity of third parties involved in the production of infringing goods.
Defendants wrongfully enjoined can raise a special plea of mis-joinder. A successful invocation of this plea results in the dismissal of proceedings against the Defendants who have been wrongfully joined. Public authorities and/or officials are liable in the same way as non-State actors.
The length of pre-trial proceedings is primarily regulated by the rules of court. The rules prescribe the time limits within which court process must be filed. The length of proceedings is also affected by the backlog of pending cases as well as the availability of judges. The cost of proceedings is governed by a tariff of fees which is contained in the rules. However, the tariff of fees does not reflect the actual cost of proceedings. There are two reasons for this. Firstly, the tariff has not been reviewed since 1990. Secondly, the fees in the tariff are subject to taxation by the taxing master. There is no available data on the actual duration of proceedings and the costs thereof. There has been no case involving the infringement of intellectual property rights.

b) Procédures et mesures correctives administratives

The law of civil procedure is silent on administrative procedures and remedies applicable to enforcement of intellectual property rights.

a) Mesures judiciaires

Provisional measures may broadly speaking be divided into two categories: civil and criminal. The criminal provisional measure is the search of the premises of the alleged infringer and seizure of alleged infringing goods. A civil provisional measure is the Anton Piller Order which is an interim order that aims to preserve evidence. The legal basis for the court’s authority to order provisional measures is the common law, the Criminal Procedure and Evidence Act as well as the Merchandise Marks Act.
The afore-mentioned measures are ordered inaudita altera parte where there is a real and well-founded apprehension that the alleged infringing goods, the equipment used to manufacture them and other records of the alleged infringing business activities may be hidden or destroyed or in some other manner be spirited away by the time the case comes to court.
A search and seizure order is initiated by approaching a magistrate for a search warrant authorizing the search and seizure. The magistrate will issue the warrant if he/she is satisfied that there are reasonable grounds for believing that there are infringing goods or other records in the possession of any person or at any premises. Usually the seized goods remain in the custody of law enforcement agents until criminal proceedings have been concluded. There are no specific time limits within which criminal proceedings have to be concluded. However, the criminal trial has to commence and conclude within a reasonable time. The person from whom the goods were seized can protect their legitimate interests by approaching the High Court and challenging the issuing of the search warrant. The High Court has the power to set aside the issuing of the search warrant and ordering the return of the seized goods. An Anton Pillar Order is sought by way of an inaudita altera parte in camera. The order shall stipulate that any of the acts to be performed under it ought to be performed by the deputy sheriff under the supervision of applicant’s attorney and a “supervising attorney”. The order should also provide that the sheriff keeps in their possession the material pending directions by the court. A judicial officer before whom an application for an Anton Piller Order is made has to be vigilant so as to protect the respondent’s legitimate interests. He or she has to weigh the potential harm that will be suffered by the respondent if the order is granted against the potential harm to the applicant if relief is refused. The order granted should not be more onerous than is necessary to protect the applicant’s interests. An Anton Pillar order is an interim order. The respondent is entitled, as soon as he or she is aware of the existence, to approach the Court for relief setting aside the Anton Piller order.
The length of the pre-trial proceedings is primarily regulated by rules of the court. The rules prescribe the time limits within which court process must be filed. The length of proceedings is also affected by the backlog of pending cases as well as the availability of judges. The cost of the proceedings is governed by a tariff of fees which is contained in the rules. However, the tariff of fees does not reflect the actual cost of proceedings. There are two reasons for this. Firstly, the tariff has not been reviewed since 1990. Secondly, the fees in the tariff are subject to taxation by the taxing master. There is no available data on the actual duration of proceedings and the costs thereof. There has been no case involving the infringement of intellectual property rights.

b) Mesures administratives

The administrative provisional measures, if any, should be in the legislation regulating Patents, Designs and Copyright. The law of civil procedure is silent on this topic.
All materials, machinery and goods that are patented in Swaziland.
Not applicable in our legislations.
Not applicable in our legislations.
Not applicable in our legislations.
Not applicable in our legislations.
High Court and the Supreme Court (Court of Appeal).
There are no provisions for criminal procedures. However, a person convicted of an offence of infringement can be fined or be sentenced to a term of imprisonment or both.
Our legislation does not provide for criminal procedures yet.
Our legislation does not provide for criminal procedures yet.
Any person who is convicted of an offence under the Trademarks Act shall be liable to a fine of E2000 ($285) or imprisonment for six months or both. In respect of patents, any person who performs as defined in sub-section (1) shall upon conviction be guilty of an offence punishable by a fine not exceeding E10, 000 ($1,429) or imprisonment for a term not exceeding five years or both. In terms of the Merchandise Marks Act 24/1937, a person convicted of any offences of infringements, shall be liable to a fine not exceeding E400 ($57), or, in default of payment thereof to imprisonment not exceeding two years, or to both such fine and imprisonment.
No provision in the legislation for the length and costs of proceedings.