Examen de la législation d'application de l'Accord sur les ADPIC ‒ Recherche

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Aux termes de l'article 63:2 de l'Accord sur les ADPIC, les Membres doivent notifier les lois et réglementations qu'ils auront rendues exécutoires, et qui visent les questions faisant l'objet de l'Accord, au Conseil des ADPIC pour l'aider dans son examen du fonctionnement de l'Accord.

Cette page vous permet d'effectuer une recherche dans les questions et réponses des Membres au sujet des lois et réglementations notifiées. Vous pouvez consulter les résultats de la recherche à l'écran ou les télécharger afin de les imprimer au format Excel. Vous pouvez également télécharger des documents spécifiques.

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Page 11 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q4/SWE/1 Suède Japon 16. Please explain the basis for calculating the security or equivalent assurance stipulated in Article 53 of the TRIPS Agreement that the competent authorities may require an applicant when they suspend the release into free circulation.
As mentioned above, the security which the applicant has to provide is decided by the customs authority; its purpose is to guarantee the applicant's obligations towards the persons affected by the action and the payment of the costs for the keeping of the goods by the customs authorities. It is not known whether there are any principles established yet for the calculation of those costs.
26/08/1998
IP/Q4/SWE/1 Suède Japon 17. Please explain who shall pay the cost of detentions based on Article 51 of the TRIPS Agreement or destruction stipulated in Article 59 of the TRIPS Agreement.
As mentioned above, the applicant shall, in the first instance, bear the costs for the detention/storage of the goods. Where the final decision implies that the goods shall be changed, the costs for that change shall be borne by the person who has the right in the goods. Where the final decision implies that the goods shall be destroyed or changed, the applicant has a right to compensation for what he has paid for the keeping of the goods from the person or persons against whom the decision applies.
26/08/1998
IP/Q4/SWE/1 Suède Japon 18. Please explain what kind of cases are regarded as "the exceptional circumstances" in which the competent authorities may allow re exportation of counterfeit trademark goods stipulated in Article 59 of the TRIPS Agreement.
The legislation contains no provisions on such "exceptional circumstances" as mentioned in Article 59 of the TRIPS Agreement.
26/08/1998
IP/Q4/SWE/1 Suède Japon 19. Please explain whether the Swedish criminal procedures are consistent with Article 61 of the TRIPS Agreement which requires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity.
In a bill (Bill 1993/94:122, pages 55-56) containing proposals for strengthening the measures against intellectual property infringements the Government stated, inter alia, that "acts that involve infringements of intellectual property rights are to be taken seriously and possibilities must exist to impose severe imprisonment penalties in serious cases". The Government then proposed – and the Parliament accepted – that the maximum penalty be increased from six months to two years for industrial property infringements (formerly, this imprisonment scale had existed only as far as copyright infringements were concerned). This increase of the maximum penalty had also the effect of extending the timeframe for instituting an action in respect of the violation of an intellectual property right and of making the provisions on detention of suspected persons possible. It seems that the Courts more and more tend to adjudicate imprisonment sanctions, at least in more flagrant copyright infringement cases. As an example can be mentioned that the Court of Appeal in Stockholm in a judgement of 26 September 1996, invoked, inter alia, the fact that the piracy activities of a defendant involved several hundreds of copies of children's movies which are commercially interesting for a comparatively long period in an important market and that, consequently great damage had been caused to the right-owners. Moreover, part of the activities had occurred through different shops, a fact that would make possible a wide distribution which was therefore especially dangerous also because the distribution would occur without the public suspecting that the copies were pirated ones. For these reasons the Court found that the penalty should be imprisonment.
26/08/1998
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 1. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in the courts identified in response to question 1 of the Checklist of Issues on Enforcement.
Any foreign party is entitled to initiate an enforcement procedure in the relevant courts. Any party may, even directly if it so wishes, initiate an enforcement procedure in the relevant courts.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 2. Please identify any requirement that a foreign party must meet to initiate a proceeding in the courts that is not required of a national or resident of Slovenia.
No specific requirements are required for foreign parties who enjoy the same treatment as national persons and/or legal entities. Moreover, foreign parties who are unable to communicate in the Slovenian language are entitled to follow the procedure with the assistance of an interpreter, provided that the costs for interpretation are borne by that party (see Articles 102(2)(3) and 105 of the Code of Civil Procedure, Official Gazette No. 4/1979, 27/1990, 1/1991-I, 55/1992, 19/1994).
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 3. Article 41.1 of the TRIPS Agreement requires establishment of safeguards against abuse of judicial and administrative enforcement procedures, including provision of adequate compensation for injury suffered because of such abuse. Please describe the means available under the law of Slovenia to prevent abuse of judicial procedures or to remedy damages suffered as a result of such abuse and cite the legal authorities for those means.
Abuse of procedural rights of parties is prohibited and can be subject to a fine (Code of Civil Procedure, Articles 10, 316). A party which abuses its procedural rights is liable to the other party for damages, which have to cover all the losses suffered (Code of Obligations, Article 190). This is explicitly regulated for any provisional measure that was sought, ordered and later found incorrect (Code of Execution, Article 274). The State and their officials can also be liable for damages caused by wilfully or negligently illegal acts of authorities (Code of Obligations, Article 172). These principles apply for both judicial and administrative procedures.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 4. Please explain any provisions in the enforcement system in Slovenia 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.
All the intellectual property cases have to be dealt with expeditiously, and thus have priority over other civil or commercial suits (Industrial Property Law, Article 98). A procedure in which a provisional measure is sought has to be treated urgently (Courts Act, Article 83). Deliberate delays caused by the parties can be prevented via several procedural safeguards – for instance summary judgement (Code of Civil Procedure, Article 332), fines for abuse of procedural rights (Code of Civil Procedure, Article 316), and many others.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 5. Article 41.2 addresses, among other things, the cost of judicial proceedings. Please describe any fees charged by judicial 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.
The fee for filing a suit is one per cent of the stated value of the dispute in civil matters and two per cent in commercial matters, but not more than SIT 540 (currently approximately US$4 000). The fee of the same amount applies for filing an appeal against the final judgement. The fee for the application for provisional measures is up to SIT 15 300 (approximately US$120). No fee is charged for criminal complaints (see Law on Judicial Fees, which unfortunately was amended so often that it is almost impossible to provide a reasonably voluminous copy of it).
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 6. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably in writing, the better to determine the reasoning on which the decision is based. Please state whether judges must render their decisions in writing and cite the legal authorities requiring such written opinions.
All judgements must be provided in writing, at the latest within eight days from the day when the court has decided. The decision is delivered to the parties and must involve the information on the right of appeal (see Article 337 of the Code of Civil Procedure). Each judgement must contain introduction, decision and full explanation of the findings (see Article 338 of Code of Civil Procedure).
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 7. 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 identify the factors that may be considered by a judge in rendering a decision.
The provision of Article 41.3 of the TRIPS Agreement is fully met by numerous provisions of the Code of Civil Procedure, as this is generally the case in the continental legal system.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 8. Article 42 requires the defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures followed for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceedings and cite the legal authorities establishing these procedures.
The provision of Article 42 of the TRIPS Agreement is fully met by the Code of Civil Procedure. Civil or commercial suit has to be submitted to the defending party in advance so that there is enough time to prepare the defence – at least eight days before the first oral hearing (Code of Civil Procedure, Articles 142, 286). These provisions are not applicable only when an ex parte provisional measure is ordered. In such cases the application and the order are served on the defendant at the beginning of the enforcement (Code of Execution, Article 39).
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 9. 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. In IP/N/6/SVN/1, the Government of Slovenia explains that courts may exclude the public from court hearings and warn the parties to respect the confidential nature of information received at hearings. Please describe the manner in which a party that failed to respect the confidential nature of information received at hearings.
A party which fails to respect the confidential nature of information received at a hearing shall be liable for damages under the provisions of Article 154 of the Code of Obligations, (Official Gazette No. 29/78, 39/85, 2/89, 37/89, 1/1991 – 1).
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 10. 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 or remedies in the laws of Slovenia and cite the legal authorities providing for those limitations.
There is no explicit provision in national legislation which would provide for the exception as described in Article 44.2 of the TRIPS Agreement. Therefore, in any such case, most probably a very rare case, Article 44.2 of the TRIPS Agreement may be directly applicable.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 11. Article 47 provides that WTO Members may authorize judges 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. In IP/N/6/SVN/1, the Government of Slovenia explains the manner in which a right holder may demand that persons involved in copyright infringement provide information and documents. Please describe any authority judges have under the laws of Slovenia to order infringers to identify for right holders those 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 describe any similar authority in connection with other forms of intellectual property.
There is the same court as indicated in Slovenia's responses to the Checklist of Issues on Enforcement, i.e. the Circuit Court of Ljubljana which has the authority to act in accordance with the provisions of Article 47 of the TRIPS Agreement. Until the provisions of this Article become part of the new Law on Industrial Property, Article 47 of the TRIPS Agreement may be directly applied.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 12. Article 48.2 permits WTO Members to exempt public authorities and officials from liability from remedies only where their actions were taken or intended in good faith in carrying out their responsibilities under the law. Please explain any exemption provided to public authorities and officials from liability for abuse of enforcement procedures, describe the circumstances in which such limitations would not apply, and cite the legal authorities granting such exemptions.
Public authorities and officials are liable, under the general rule for damages, whenever their actions were taken or intended in bad faith (Article 172 (1),(2) of the Code of Obligations). This provision implies the applicability of Article 48.2 of the TRIPS Agreement.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 13. Article 50.2 requires Members to authorize judicial authorities to adopt provisional measures inaudita altera parte. IP/N/6/SVN/1 states that such action can be taken in industrial property cases "in urgent cases". Please describe briefly the circumstances that would be considered "urgent", providing examples.
Preservation of evidence, whenever a danger of its destruction exists, is deemed to be an urgent case. The authorities have followed this practice regularly in all cases concerning copyright and trademark infringement.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 14. Article 50.3 requires that judicial authorities be authorized to require an applicant to provide evidence to establish with a sufficient degree of certainty that the applicant is the right holder and that infringement has occurred or is imminent. With respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please describe the evidence required by right holders to establish ownership.
In the field of patents, trademarks, industrial designs and topographies of integrated circuits, the ownership is established by submitting the corresponding official document issued by the Slovenian Intellectual Property Office. In the field of copyright and related rights and protection of undisclosed information, the ownership is established by providing a sample of the relevant work and/or information for which infringement is claimed.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 15. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable right holders to request suspension of the importation of counterfeit trademarked goods and pirated copyright works. IP/N/6/SVN/1 describes procedures for pirated copyright goods and says that otherwise the TRIPS Agreement applies directly. If this means that border enforcement in connection with counterfeit trademarked goods is not addressed directly in national law, please explain how the competent authorities are designated in Slovenia, since the TRIPS Agreement does not specify particular authorities. Please describe any plans to amend national legislation to implement border measures in connection with counterfeit trademarked goods.
In principle, both judicial and administrative procedure is possible, the latter, however, only in the area of pirated copyright goods (Article 173 of the Copyright and Related Rights Act). Explicit provisions in the field of industrial property will be included in the new Law on Industrial Property, which may be adopted in 1998.
01/03/1999
IP/Q4/SVN/1 Slovénie États-Unis d'Amérique 16. Article 60 permits Members to exclude from the provisions for border enforcement small quantities of goods of a non-commercial nature carried by passengers or sent in small consignments. Please describe what constitutes a de minimis import that is excluded from the border measures under the law of Slovenia.
There is no quantification in this respect in the relevant national legislation. A decision what constitutes a de minimis import is judged by the rule of reason for each case individually.
01/03/1999

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