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

Nicaragua

a) Procédures et mesures correctives judiciaires civiles

- Civil District Courts; - Appeal Courts; - Supreme Court of Justice. These decide complaints relating to infringements or violations of intellectual property rights. This is based on Article 103 of Law 312, Copyright and Neighbouring Rights; Article 28 of Law 322, Protection of Programme-Carrying Satellite Signals; Article 105 of Law 354, Patents, Utility Models and Industrial Designs; Article 96 of Law 380, Trademarks and Other Distinctive Signs ; Article 24 of Law 324, Protection of Lay-out Designs of Integrated Circuits; Article 79 of Law 318, Protection of New Plant Varieties; and Article 67 of the Central American Convention for the Protection of Industrial Property (1968).

Standing - Right holder; - co-holders; - exclusive licensees; - collective management bodies in the field of copyright and neighbouring rights. Representation The above-mentioned persons may be represented by attorneys or agents, provided they are lawyers. Appearance The person concerned is not obliged to appear personally in court and may be represented by a lawyer. The only case in which a personal appearance is mandatory is for discovery purposes (answering interrogatories), at the request of the other party.

Authority The competent judicial authorities have the authority to order the production of documents and moveables within the control of the parties, in accordance with the Code of Civil Procedure.

Protection of confidential information In our legislation this type of information is protected by keeping it secret, outside the proceedings. Similarly, the evidence must remain under the responsibility of the judge. Moreover, the special intellectual property laws stipulate that the judicial authorities may do whatever is necessary to protect confidential information, where appropriate. Provisions contained in Law 354 , Patents, Utility Models and Industrial Designs; Law 380 , Trademarks and Other Distinctive Signs; the Regulations of Law 312 , Copyright and Neighbouring Rights; and the Regulations of Law 318, Protection of New Plant Varieties.

Remedies - Sequestration; - preventive seizure; - disclosure of documents; - inspection of equipment; - other suitable measures to prevent infringement ordered by the court and enforced by the customs authorities (border measures). With respect to patents, utility models and industrial designs, the competent judicial authority may order one or more of the following measures: - Cessation of the acts that constitute the infringement; - damages; - withdrawal from commercial channels of products resulting from the infringement and materials and means used predominantly for committing the infringement; - prohibition of the importation or exportation of products, materials or means; - adjudication of the ownership of the above-mentioned products or materials or means, in which case the value of such goods shall be included in the damages; - destruction of the products or materials or means used for committing the infringement and other measures necessary to prevent the continuation or repetition of the offence; - publication of the verdict and notification of interested parties at the infringer's expense. The following criteria, among others, are used to calculate the amount of damages: - The profits lost by the right holder as a consequence of the infringement; - the profits earned by the infringer as a result of the infringing acts; - on the basis of the commercial value of the infringed right and such contractual licences as the right holder may already have granted, the price the infringer would have paid for a contractual licence. In copyright and neighbouring rights cases , measures may be adopted to ensure the cessation of the unlawful activity and indemnification for moral and material damage. Cessation of the unlawful activity may include: - Prohibition from engaging in the acts that constitute such activity; - the withdrawal of unlawful copies from circulation and their destruction; - the seizure of the equipment used and its handing over to Associations of Authors and Performers. The moral right of the author is understood to have been infringed by the impairment of any of the powers it confers and by the violation of any right of exclusive exploitation in the works. In both cases, irrespective of material damage, the author is entitled to indemnification for moral damage, even if there is no proof of the existence of economic injury derived from material damage. For assessment purposes, the circumstances of the infringement, the seriousness of the injury and the extent of the unlawful dissemination of the work are taken into account. In determining the material damage, the following, in particular, are taken into account: - The profits which the injured party would presumably have earned if there had been no infringement; - the remuneration he would have received if he had authorized the use; and - in the case of malicious intent on the part of the infringer, any profits he may have derived from the infringing activity. The injured party may opt for compensation for infringement of economic rights for injury calculated in accordance with any of the above rules. If he opts for more than one, their application will be equitably adjusted by the court. Whatever the nature of the damages, the compensation will include the costs of the proceedings and the fees of any lawyer representing the injured party, in accordance with the Schedule of Court Charges. In the case of "programme-carrying signals" , without prejudice to any criminal penalties, the holder, his successor in title or representative may request from the court: - The cessation of the unlawful activity; - the prohibition of its resumption; - the payment of compensation for damage and injury caused by the infringement of the right; - the withdrawal from trade of unlawful copies and their handing over to the holder of the infringed rights, at his request, or their destruction; - the rendering useless or disablement of the products resulting from the unlawful act, the equipment or systems used for committing it and the materials used for the infringement, if they cannot be used for lawful purposes, and, if necessary, their destruction; - the payment of the costs of the proceedings by the infringer; - the publication of the judgement in one or more newspapers specified by the court, without prejudice to its publication in the Official Journal, La Gaceta, all at the expense of the infringer. Damages shall be fixed in accordance with the provisions for the determination of material damages in Law 312, Law on Copyright and Neighbouring Rights. Law 318, Protection of New Plant Varieties , refers to the provisions of Law 354, Patents, Utility Models and Industrial Designs.

The judicial authorities may order the infringer to provide information he may have concerning persons who have participated in the production or marketing of the products or processes forming the subject of the infringement and the distribution channels for those products.

Indemnification of defendants wrongfully enjoined The measure which the judicial authorities apply, whether it be ex officio or at the request of a party, is to require the plaintiff to provide security sufficient to cover and pay any costs or damages awarded against him. Liability of public officials Under the Constitution, the State is materially liable for injury to the goods, rights and interests of individuals resulting from the actions or omissions of public officials in the exercise of their duties. The State, in its turn, may sue the official or civil servant responsible for the injury. Officials and civil servants are personally liable for violations of the Constitution, for lack of administrative probity and for any other offence or misdemeanour committed in the performance of their duties. They are also liable to the State for damage caused by abuse, negligence or omissions in the exercise of their authority. With regard to the extent to which public authorities and/or officials are liable, the provisions of the Law on the Regulation of Courts of Administrative Justice , which establishes the material liability of the State and the Government for damage and injury to the goods, rights and interests of individuals, are applicable. Moreover, Law 260, Law on the Administration of Justice, establishes the liability, disciplinary, civil and criminal, of court officials. The Law regulating the Courts of Administrative Justice includes remedial measures applicable to public officials which range from warnings to temporary or permanent suspension, as appropriate, and pecuniary penalties, without prejudice to the provisions of the criminal law.

Length and cost of proceedings The Nicaraguan legislation provides for ordinary proceedings , which consist of the following: six days to contest the injunction after notification; 20 days for the taking of evidence, if the evidence has to be produced in the place where the proceedings are being held, otherwise the period may be increased but not by more than half the original period specified by law; 15 days after completion of the formalities for delivering a final judgement. There are also the summary proceedings referred to in Law 312, Law on Copyright and Neighbouring Rights. In this case the court may be requested to conduct the proceedings on the merits in accordance with the summary civil procedure , which should not take more than 14 days in first instance. The civil proceedings applicable to acts of infringement and acts of unfair competition last approximately two (2) months. In Nicaragua, the administration of justice is free of charge. Some costs for the provision of court services are regulated by the Schedule of Court Charges. Costs may also be incurred for the service of notice. As far as lawyers' fees are concerned, they are agreed between the parties (clients and lawyers) or the Schedule of Court Charges is applied. The approximate costs are usually US$3,000 to US$6,000 at first instance, US$2,000 on appeal, and US$3,000 in cassation.

b) Procédures et mesures correctives administratives

Competent authorities in the field of intellectual property Under Nicaragua's legal system, the administrative authorities are not competent to enforce compliance. This is a matter exclusively for the courts.

a) Mesures judiciaires

Industrial property In accordance with the Law on Patents , the following provisional measures may, among others, be ordered: - Immediate cessation of the acts that constitute the infringement; - seizure or sequestration of the products resulting from the infringement and materials and means used predominantly for committing the infringement; - suspension of the importation or exportation of the products, materials and means mentioned in the previous subparagraph; - provision of security or other guarantee deemed sufficient by the competent judicial authority; - the disclosure of documents. The Law also lays down border measures. The Law on the Protection of Lay-out Designs of Integrated Circuits also provides for measures of this kind. The Law on Trademarks and Other Distinctive Signs also contains provisional measures, including: - Immediate cessation of the acts that constitute the infringement; - the seizure or sequestration of products, packaging, wrappings, labels, printed material or advertising and other materials displaying the infringing sign and materials and means used predominantly for committing the infringement; - suspension of importation or exportation of the products, materials or means mentioned in the previous subparagraph; - border measures. The Law on the Protection of New Plant Varieties provides for the ordering of the following provisional measures, among others: - Immediate cessation of the acts that constitute the infringement; - withdrawal from or prevention of circulation in respect of the plant varieties or propagating material with which the rights protected by the Law are infringed; - withdrawal from circulation of objects, packaging, wrappings, stationery, advertising and the like with which any of the rights protected by the Law are infringed; - seizure or sequestration of the products resulting from the infringement and materials and means used predominately for committing the infringement; - suspension of the exploitation of the products, materials or means mentioned in the previous subparagraphs; - provision of security or other guarantee deemed sufficient by the competent judicial authority; and - the production of documents or moveables. Copyright and neighbouring rights The Law on Copyright and Neighbouring Rights includes protective measures which, depending on the circumstances, may be necessary for the urgent protection of rights, in particular, the prohibition or suspension of the infringing activity, the sequestration of copies reproduced or used in that activity and the corresponding implements, together with deposits of income from the infringing activity. Similarly, under this legislation the parties may request judicial examination of the evidence. The Law on the Protection of Programme-Carrying Satellite Signals stipulates that, without prejudice to the provisional measures for which the ordinary legislation provides, the judicial authority may order, among other things, the following: - The immediate suspension of the infringing activity; - the sequestration of everything that constitutes violation of the right or has been used for the infringement; - the seizure of revenue from the unlawful activity and, where appropriate, the amounts owed by way of remuneration; - the production and confiscation of documents and other moveables; - the inspection of equipment, installations and immoveables; - the adoption of other measures necessary to prevent infringement or safeguard evidence. These proceedings are usually expeditious. Their duration is one, four or five months. In the case of patents, there are no remedies that may be ordered. It is only possible to accept or reject the comments on a patent application.

Circumstances in which measures may be ordered The copyright and neighbouring rights legislation establishes the following circumstances: when any delay might cause irreparable injury to the applicant or there is a demonstrable risk of evidence of the violation or revenue from the infringing activity, the depositing of which has been requested, being destroyed or caused to disappear. In the field of industrial property, these measures may be adopted in the following circumstances: - To prevent an infringement or avoid its consequences; - to obtain and preserve evidence; - to ensure the effectiveness of the action or the payment of damages.

Procedure for the adoption of provisional measures Any party initiating or about to initiate an action for infringement of a right protected under the corresponding law may request the competent judicial authority to order immediate provisional measures for the purpose of preventing an infringement from occurring, avoiding its consequences, obtaining or preserving evidence, or ensuring the effectiveness of the action or the payment of damages. Provisional measures may be requested before starting the action for infringement, together with it, or after it has been initiated. A provisional measure will be ordered only where the person requesting it can prove his lawful right of action and the existence of the infringed right. The competent judicial authority will require the person requesting the measure to provide sufficient assurance (security), in accordance with the Code of Civil Procedure. Once measures have been executed, to maintain them in effect a corresponding application must be made within the legal term, for example, in the case of patents , trademarks, integrated circuits and new plant varieties within fifteen (15) working days of the execution of the measure. The period applicable to copyright and neighbouring rights is twenty (20) days from adoption. In the case of programme-carrying satellite signals the period is thirty (30) consecutive days from implementation or execution.

The proceedings are expeditious and their duration depends on each particular case. The costs are determined in the usual way.

b) Mesures administratives

See the reply to question 9 above.

[Answer 9: Competent authorities in the field of intellectual property Under Nicaragua's legal system, the administrative authorities are not competent to enforce compliance. This is a matter exclusively for the courts.]

Suspension of release In Nicaragua, the holder of an intellectual property right may request the competent judicial authority to suspend the customs clearance of any goods that infringe that right. These measures will be ordered by the judicial authority once the applicant has shown that he is the holder of the right. The patent, trademark, integrated circuit lay-out design and new plant variety laws establish measures for suspending the importation or exportation of protected goods. In the case of "pirated goods that infringe copyright" the competent judicial authority may also order the implementation of such measures, in accordance with Article 102 of Law 312 and Article 2000 of the Code of Civil Procedure. This provision is applicable both to the infringing products and to the materials or means used predominantly for committing the infringement, at the time of importation, exportation or transit. These provisions will not be applicable when a Customs Union has been established between the Signatory States provided that the goods originate in one of the member States. Parallel imports The Laws on Trademarks and Other Distinctive Signs and on Patents, Utility Models and Industrial Designs follow the international system of exhaustion of rights, that is to say, it is sufficient for the right holder or a person or entity economically related with him and acting with his consent to put the lawful products into circulation in some country. In other words, border measures are not applied to parallel imports.

The holder of an intellectual property right wishing to have measures taken at the border may apply directly to the judicial authority, which issues the corresponding order to the General Directorate of Customs. If the conditions have been met and the necessary assurances provided, the court will order or deny suspension and inform the applicant accordingly. Once suspension has been executed, the General Directorate of Customs will immediately notify the parties (importer or exporter and applicant) of the execution of suspension. In practice, the competent authority sends an official letter to the General Directorate of Customs Services; in its turn, the latter orders customs offices at airports, seaports and land borders to suspend release of the infringing goods. These measures are executed at the request of the interested party, subject to the provision of security (deposit) as specified by the competent authority.

With regard to the length of the proceedings and their cost, the same provision applies as indicated in the reply to question 13 above. In Nicaragua, the period of validity is not more than ten (10) days, which may be extended by a period of the same length, where there is good cause. Where suspension is ordered as a provisional measure, its duration will be fifteen (15) working days from the date of execution of the measure.

Under the Nicaraguan legislation these measures are applied at the request of a party.

The Nicaraguan General Directorate of Customs does not have the authority to impose border measures by itself. It can only act under a court order. These measures are described in the reply to question 10 above.

The Criminal District Courts of first instance. The Criminal Division in the second instance and the Criminal Division of the Supreme Court of Justice in cassation.

The Nicaraguan intellectual property legislation establishes penalties for the infringement of rights, together with appropriate fines: Law on Patents (Articles 131 and 132) Anyone who: - Falsely causes a product to appear to be a patented product or protected by utility models or an industrial design; - without being the holder of a patent, utility model or industrial design or while no longer enjoying those privileges invokes it before a third party as if he were so entitled; shall be liable to two to four years' imprisonment and a fine of 5,000 Central American pesos , the equivalent of 5,000 United States dollars. Anyone who: - Counterfeits wilfully and on a commercial scale; - discloses to a third party a business secret known to him through his work, position, the conduct of his profession, or business relations or by virtue of the granting of a licence, without the consent of the person keeping the business secret; - acquires a business secret unlawfully and without the consent of the person keeping the secret or its authorized user, in order to use it or disclose it to a third party, for the purpose of obtaining an economic advantage for himself or for a third party or for the purpose of causing injury to the person keeping the business secret or its authorized user; - makes use of information contained in a business secret which became known to him through his work, position, or the conduct of his profession or business relations, without the consent of the keeper of the secret or its authorized user, or has been disclosed to him by a third party, while aware that the latter did not disclose it with the consent of the keeper of the secret or its authorized user, for the purpose of obtaining an economic advantage or causing injury to the keeper of the secret or its authorized user; - manufactures products that are patented or protected by utility models or industrial designs or employs patented processes without the consent of the patent holder or acts without licence or authorization; - imports, distributes or markets products covered by a patent or protected by utility models or industrial designs, while aware that they were manufactured or produced without the consent of the right holder or without licence or authorization; shall be liable to four to six years' imprisonment and a fine of 8,000 Central American pesos, equivalent to 8,000 United States dollars. Law on Copyright and Neighbouring Rights (Articles 106 to 112) In the following cases anyone infringing copyright or the rights of a performer, phonogram producer or broadcasting organization shall be liable to one to two years' imprisonment: - Using without the written consent of the right holder the title of a work that effectively distinguishes it from others of the same kind, where there is a risk of confusion; - making any translation, arrangement or other transformation of the work without the written authorization of its author or the right holder; - publicly communicating a work or phonogram without the written authorization of the author or right holder in any form or by any process, whether in its original or an altered form, in whole or in part; - distributing copies of a work or phonogram by sale, rental, importation or any other method of distribution without the authorization of the right holder; - retransmitting or distributing a radio or television broadcast, by any wire or wireless means, without the authorization of the right holder; - reproducing or distributing, being the assignee or licensee authorized by the holder of the corresponding right, a greater number of copies than the contract permits, or communicating, reproducing or distributing the work after the agreed authorization period has expired; - where a person falsely attributes to himself original or derived ownership of any copyright or neighbouring rights and by virtue of that false attribution causes the competent judicial or administrative authority to suspend the communication, reproduction or distribution of the work, performance or production; and - when the person authorized to use or exploit one or more works makes false statements in accounts of proceeds, works used, or authors' identities, or regarding authorization obtained or numbers of copies, or makes any other alteration to data that is liable to prejudice any holder of copyright or related rights. A penalty of two to three years' imprisonment for whoever: - Without the written authorization of the right holder, reproduces or copies works or phonograms by any means or process, in the original or an altered form, in whole or in part; - imports, stocks, distributes, exports, sells, offers for sale, holds, hires, or otherwise places in circulation unlawful reproductions of works or phonograms; - registers in the Copyright Register the work, performance or production of another as if it were his own or that of a person different from the true author or right holder; and - without the written authorization of the holder reproduces, fixes or copies, by any means, a work, performance, phonogram or radio or television broadcast, in whole or in part, or imports, stocks, holds, distributes, exports, sells, hires or otherwise places in circulation such reproductions or copies. The penalties specified in the foregoing Articles may be increased by one third if the offences are committed in relation to a work, performance or production that is not intended for disclosure, or in the case of appropriation of authorship, or distortion, mutilation or other alteration liable to prejudice the honour or reputation of a person protected by the Law. In addition to the above-mentioned penalties, the court may impose on the offender a fine of from 3,000 to 25,000 córdobas , depending on the seriousness of the offence, and if the latter was a trader will order suspension, without prejudice to his civil liabilities. Printers and other enterprises engaged in similar activities may not print or reproduce labels, covers and other materials necessary for the dissemination of works and phonograms, without the authorization of the right holder. The indemnification which the infringer must pay the injured party for infringing his copyright or related rights will be at least equal to the selling price of a lawful copy multiplied by the number of unlawful copies seized. In any case, the amount of indemnification will not be less than the value of 100 copies. The following acts will be considered unlawful and treated as an infringement of the rights of the authors and other copyright holders: - The manufacture or importation, for sale or hire, of a device or means especially designed or adapted for rendering inoperative any device or means intended to prevent or restrict the reproduction of a work or degrade the quality of copies made; - the manufacture or importation, for sale or hire, of a device or means that allows or facilitates the reception of an encoded programme, whether broadcast or communicated to the public by some other means, by persons not authorized to receive it; - the unauthorized elimination or alteration of any information concerning rights management presented in electronic form; - the unauthorized distribution or importation for distribution, broadcasting, communication to the public or making available to the public of works, performances, phonograms or broadcasts, while aware that information concerning rights management presented in electronic form has been eliminated or altered without authorization; - for the purposes of this Article, "information concerning rights management" shall mean information that makes it possible to identify the author, the work, the performer, the performance, the phonogram producer, the phonogram, the broadcasting organization, the broadcast and any holder of rights under this Law or any information concerning the terms and conditions for the use of the work and other productions envisaged by the Law and any number of code representing such information, when any such item of information has been added to a copy of a work, a fixed performance, a copy of a phonogram or a fixed broadcast or appears in connection with the broadcasting, communication to the public or making available to the public of a work, a fixed performance, a phonogram or a broadcast. The criminal proceedings for the prosecution of these offences are public and subject to a six year period of limitation. The provisions of the Law on Patents are applicable to the Law on the Protection of Lay-Out Designs of Integrated Circuits (Article 24). Law on the Protection of Programme-Carrying Satellite Signals (Articles 35 to 37) Offences and penalties: anyone who, without the prior written consent of the holder of the right in the broadcast signal, commits any of the following acts: - Retransmits or distributes to the public a programme-carrying signal, whether by wireless means or via cable, optical fibre or other similar method; - decodes an encoded programme-carrying signal, whether transmitted by wire or by wireless means; - fixes and produces a protected broadcast for distribution to the public of copies containing the reproduction; - participates in or contributes to the manufacture, assembly, modification, sale, hire, installation, maintenance or otherwise placing in circulation of a device or system which can be used for decoding an encoded programme-carrying signal or for enabling or facilitating the reception of an encoded programme; shall be liable to three to four years' imprisonment. Subsidiary penalties: without prejudice to the criminal penalty for which the previous Article provides, the court shall order the publication of the verdict in one or more newspapers with a wide circulation, at the infringer's expense. The court shall also order the destruction of everything used for committing the offence or its handing over to the injured party, if he so requests, unless the equipment can be used for a lawful purpose. Telcor, the Telecommunications Regulatory Authority, is authorized to suspend, temporarily or permanently, the licences of natural or legal persons who have been punished for violations of this Law; application for suspension is made by the right holder who brought the criminal proceedings by submitting a certified copy of the verdict to the regulatory authority. Provisional measures in criminal proceedings: the competent court is authorized to order and enforce the provisional measures provided for in civil proceedings. Law on the Protection of New Plant Varieties (Article 80) Criminal penalties: any act leading to the improper use of a breeder's right and any infringement knowingly committed constitutes a punishable offence for the purposes of this Law. In this case, the arrangements, procedures and penalties laid down in the relevant legislation will be applicable. Law on Trademarks and Other Distinctive Signs (Articles 102 and 103) Criminal penalties for infringement: anyone who, without the consent of the respective right holder, wilfully commits any of the following acts: - Makes commercial use of a registered trademark or a copy or imitation thereof, in relation to products or services that it distinguishes; - makes commercial use of a protected business name, title or emblem; - makes commercial use in relation to a product or service of a geographical indication that is false or likely to mislead the public as to the origin of that product or service or as to the identity of the producer, manufacturer or supplier of the product or service; - makes commercial use in relation to a product of a false or misleading appellation of origin, even if the true origin of the product is indicated, or the appellation is used in translation or accompanied by expressions such as "type", "kind", "style", "imitation" or the like; shall be liable to three to six years' imprisonment or a fine of not more twenty-five thousand Central American pesos ($CA 25,000), equivalent to twenty-five thousand United States dollars (US$25,000) or both. Proceedings against the offences described: The offences specified in this Law can be prosecuted at the instance of the competent authority or upon the filing of a complaint by an interested party, including any entity or organization representative of a branch of industry or consumers. Criminal proceedings are subject to a period of limitation of four years from the time that the offence was last committed, whichever is the earlier [sic].

Competent authorities The District Criminal Courts, the Public Prosecutor's Office and the Police. They are required to initiate proceedings on their own initiative and in response to complaints.

Standing Any citizen may initiate criminal proceedings by filing a complaint.

The penalties for the infringements of copyright and neighbouring rights and industrial property rights described in the reply to question 21 above can be summarized as follows: Copyright and neighbouring rights: One to two years' imprisonment; two to three years' imprisonment ; monetary fines ; indemnification. Three to four years' imprisonment, publication of the verdict; destruction of the means used to commit the offence; temporary or permanent suspension of licences; ordering and enforcement of provisional measures. Industrial property: Patents. Two to four years' imprisonment and a fine; four to six years' imprisonment and fines (Articles 131 and 132 of Law 354, Patents, respectively); Article 24 (Law 324, Lay-out Designs of Integrated Circuits); Article 80 (Law 318, New Plant Varieties of 12 November 1999); Trademarks and Other Distinctive Signs. Two to six years' imprisonment and a fine (Articles 102 and 103 of Law 380, Trademarks and Other Distinctive Signs).

Length and cost Criminal proceedings usually last from six months to a year in the first instance. With respect to lawyers' fees, they are agreed with the client. Otherwise the Schedule of Court Charges applies. In practice, fees vary between US$1,000 and US$5,000 for first-instance proceedings. In criminal proceedings there are no other expenses, except for the fees of experts if their testimony is required.