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.

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Page 14 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
The Slovak Code of Civil Procedure strictly determines a written form required for each decision on the merits of the case and (with slight exceptions) also for each decision of a procedural nature. This written form and its delivery to the hands of a party to the proceeding is established in Sections 157 and 158 of the Slovak Code of Civil Procedure. The written form and the obligation of delivery of a procedural decision are established in Sections 168 and 169 of the Slovak Code of Civil Procedure. The same holds true for decisions made in administrative proceedings, where the required details concerning the decision, including its written form and delivery in the hands of all the parties are established in Section 47 of the Act on Administrative Proceedings No. 71/1967, Digest of Laws.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
This is a wide question. The basic right of a party to a legal and administrative proceeding is established by Article 48 of the Constitution of the Slovak Republic, as follows: "(1) No one can be deprived of their legitimate judge. The competence of courts will be stated by the law. (2) Everyone has the right to have his or her case heard in public, without unnecessary delays and in his or her presence, so that he or she is able to make a statement regarding all evidence presented. The public can be excluded only in specific cases stated by the law." More detailed rights and duties of all parties to legal proceedings, as well as all the forms and methods of presenting evidence are established in the Slovak Code of Civil Procedure Act No. 99/1963, Digest of Laws, in accordance with the wording of later regulations. An analogous regulation concerning administrative proceedings is stated by Act on Administrative Proceedings No. 71/1967, Digest of Laws.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
The right of every party to appeal against an administrative decision and have it reviewed by a separate, independent court, is provided for by Article 46, paragraph 2, Constitution of the Slovak Republic. From procedural point of view this review of legality of administrative decisions is regulated as a whole by Section 244 and following of the Slovak Code of Civil Procedure. In principle each and every administrative decision is subject to the review power of courts unless the law, that is, the Slovak Code of Civil Procedure, explicitly exempts it from this power. Pursuant to Section 250, paragraph 1, letter b), the Slovak Code of Civil Procedure, the action has to be filed within two months since the administrative body of last resort delivered its decision to the respective party. Section 249, paragraph 2 establishes the requirements of an action. Section 248 defines which decisions are not subject to the review power of courts, with the important addition, that no decision concerning basic rights and freedoms can ever be exempt from this power. Thus we can say that the review power of courts is general and there are no other limitations than those already mentioned here. The rights and obligations of all the parties to legal and administrative proceedings are established in the Slovak Code of Civil Procedure and in the Act on Administrative Proceedings. Every party to an enforcement proceeding has the right to be notified officially and in writing about any actions that have been filed concerning him or her, plus acquiring all the important enclosures like documents as evidence, etc. The party to a proceeding also has the right and duty, if the competent body so decides, to make a written statement concerning the action filed and also concerning all the evidence. The party has the right to be present in person while all the evidence is presented and is also able to propose other evidence and be heard in relation to it. In cases where a party has been deprived of the above-mentioned rights, this constitutes a reason for the appellate body to cancel the decision and remit the case for a further proceeding.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
See reply to question 10 above.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 the Slovak Republic’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.
The questions concerning representation of a party by a counsel are provided for by the Slovak Code of Civil Procedure, Section 24 and the following. There are no limitations to the representation in court with one exception only a legally competent person is able to act as a counsel. In case a party is represented by a counsel, his or her personal appearance in court is not necessary. There is only one exception when the court finds personal appearance of a party inevitable, for example if certain evidence must be presented by hearing the party in question. There are no limitations to the right of a party to a proceedings to appear personally in order to substantiate his or her claims and to make statements to everything that is presented. On the contrary, this is a basic right granted by the Constitution. Neither are there any limitations to the right of all parties to propose evidence. On the other hand, the court is authorised to judge, whether the presentation of particular evidence is or is not inevitable for a proper finding on the merits of the case. Evidence and its presentation is regulated in the Slovak Code of Civil Procedure, Second Chapter, Section 120 and following.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 13. Under Article 42, parties are to be entitled to substantiate claims and present relevant evidence. Please describe any limitations under the law of the Slovak Republic on a party’s ability to substantiate a claim or to present relevant evidence and cite the legal authority providing such limitations.
See replies to questions 11 and 12 above.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 the Slovak Republic 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 court can compel everybody, including a party to the proceedings, to produce a document or an object as evidence (Section 129, 2, Code of Civil Procedure). The court may also order the examination of a thing in the place where it is located (Section 130). The court may also hear the parties to the proceedings as witnesses (Section 131). Disobedience of the court’s order can be sanctioned by imposing a penalty several times in order. According to Sections 35, 37 and 38 of the Law on Civil Procedure similar jurisdiction also has an administrative authority. The examination of submitted evidence is at the court’s discretion. In cases where the plaintiff partially lacks evidence the court can also take into consideration and, for the plaintiff’s benefit, examine circumstantial evidence and, in extreme cases, also deal with the question of the trustworthiness of the party to the proceedings and decide for the plaintiff’s benefit but only if the opposing party does not rebut evidence produced by the plaintiff. In specific cases the law deals with the supposed lack of evidence of the injured party by means of rebuttable legal presumptions as, for example, it is provided by the patent law in Section 13, 2 of Law No. 527/1990 Coll. as follows: "If the patent is granted to a process the rights to this patent are extended to the products obtained directly by a patented process, when identical products are considered to be obtained by the procedure of protection if it is not proved otherwise." The court then can require from any person to submit documents, or objects, or it can request from this person to testify regarding the facts proposed by a party to the proceedings if this party is not capable of producing evidence. The protection of official (State) and professional secrets is provided by Law No. 100/1996 Coll. According to Section 3, 1, a professional secret is information or a thing connected with an activity of a State body, community or other legal entity indicated in the list of facts presenting the subject of a professional secret of a central body or community which, with respect to its importance, must be protected against disclosure, misuse, damage, destruction, loss, or stealing. Every State body makes a list of official secrets whose release and deposit is published in the Collection of Laws. In the case of the Industrial Property Office the subject matter of its official secrets is considered to be an invention, utility model, industrial design, and topography of semiconductor products when an applicant or right holder requests secrecy. In such cases the treatment of the documentary material and access to it are the subject of a special protection regime in accordance with the law. The same procedure is applied in a legal proceedings A further category is trade secrets, and as such production secrets should be considered. With regard to the above-mentioned the protection is provided by the Commercial Code No. 513/1991 Coll. Section 17 of the Commercial Code defines trade secrets as follows: "The subject matter of the rights which belong to an enterprise are also trade secrets. Trade secrets are made up of all facts of trade, production, or technical nature connected with an enterprise, and which have real or at least potential material or non material value, and which are not generally accessible in trade circles, and should be officially secret if an entrepreneur so wishes and he himself in an adequate manner secures their secrecy." According to Section 20: "The entrepreneur is entitled to legal protection against breach or jeopardy of the right to trade secret as against unfair competition." The breach of trade secret is defined in Section 51 as follows: "The breach of trade secret is an action by which a person unlawfully states, reveals to another person, or for himself or for another person makes use of a trade secret (Section 17), which can be used in competition and about which he obtains knowledge in the following manner: a) The secret was confided to him or it became accessible in some other manner (e.g. from technical documents, instructions, drawings, models or designs) based on an employee relationship with his competitor, or on the basis of some other relationship with the competitor, or in the execution of his function to which he was called by the court or some other body, b) by his own action or another person’s action which is contrary to law." From the quoted part of Section 51, a) and b), the obligations of third parties in relation to a trade secret are evident, albeit very generally. For the purpose of the proceedings before the Anti Monopoly Office the obligations of the third persons are defined in Sections 15 and 16 of the Law on Protection of Economic Competition No. 188/1994. In Section 15 it is provided: "Entrepreneurs are obliged to submit to the Office the required documents and information, to comply with examination of these documents and information and to enable employees of the Office to enter all objects, premises and means of transport of entrepreneurs". In Section 16 it is provided: (1) "The documents and information obtained by the Office from entrepreneurs of the bodies of the State administration and communities can be used only for the purposes for which they were requested." (2) "The employees of the Office as well as the persons commissioned to fulfil the tasks which belong to the competence of the Office are obliged to adhere to secrecy regarding the facts making up trade secrets, about which they obtained knowledge when fulfilling the above-mentioned tasks." The last category represents confidential information, i.e. the facts which do not meet the criteria of official, professional or trade secret but there is a rational and socially acceptable reason for their confidential treatment. In general, this category is not regulated by a specific law. However, some norms of procedural character regulate the obligations of the third parties (especially of the state authorities) in relation to confidential information. The above-mentioned norms are Sections 44 and 124 of the Code of Civil Procedure, Section 23 of the Law on Civil Procedure No. 71/1967 Coll., Section 4 of the Decree of the Ministry of Justice Regulations of Procedure for District and Regional Courts No. 66/1992 Coll.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
See reply to question 14 above.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 the Slovak Republic 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.
See reply to question 14 above.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
See reply to question 14 above.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 decision concerning these questions is the task of the courts, in this particular case county courts as courts of the first instance. The court's decision has to correspond with e.g. the right of the trademark holder, pursuant to Sections 25 and 26 of the Act on Trademarks No. 55/1997, Digest of Laws. On that basis the court is able to forbid a certain infringing action against the rights of a trademark holder and it is also authorised to decide concerning adequate remedies, including disposal of goods outside commercial channels, etc. Thus in the case of trademarks, the cited provisions of Sections 25 and 26 are applied, together with the authority of courts, as established in Section 80, letter b) and c) of the Slovak Code of Civil Procedure.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 the Slovak Republic and cite the legal authorities providing for those limitations.
The use of the subject of intellectual property rights without permission of the right holder in the Slovak Republic by third parties is made possible by law only in the case of patents, namely by compulsory licence. This is established by Section 20 of Act No. 527/1990, Digest of Laws. A compulsory licence can be granted by the Slovak Industrial Property Office if the patent holder does not use his or her invention or uses it deficiently without substantial reasons. A compulsory licence can also be granted if there is a threat to the public interest. In accordance with the wording of paragraph 2, the right of the patent owner to receive a proper remuneration for a compulsory licence, consisting of the licence price, is not affected.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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.
Damages payment or adequate compensation for non proprietary injury concerning the subject of industrial property falls within the jurisdiction of county courts. The same applies to copyright and related rights. Damage payment in general is regulated by Section 420 and the following provisions of the Civil Code. Certain specialized laws also relate to this regulation, like for example Section 26 of the Act on Trademarks, which aside from damages of payment also establishes the right to adequate compensation for non proprietary injury, granting that this compensation can also be submitted in the form of financial remuneration. In the case of inventions and industrial designs, the relevant regulations are stated by Section 75 of Act No. 527/1990, Digest of Laws. Above all the injured party has the obligations to substantiate his or her claim for damage, calculate the payment and state who is responsible for the injury. Here it is necessary to mention that in the Slovak Republic there has been a system of authorised experts functioning for a long time, granting that these experts are called to provide their expert’s opinion in certain specific areas.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 court will decide on the right to compensation for legal fees along with its decision on the merits. The right to legal fees payment is regulated by Section 137 and following of the Slovak Code of Civil Procedure. Pursuant to Section 142 of the Slovak Code of Civil Procedure, the party with full success in the action, will be granted by the court compensation of all legal fees necessary to enforce the law or to defend the law efficiently against the party who was not successful. In the case of partial success, the court will distribute the payments appropriately or will decide, that the parties are not entitled to compensation of legal fees. The successful party is thus able to enforce the right to compensation of all fees that were demonstrably used to gain effective law enforcement or defense, against the opposing party. These fees include also personal expenses, expenses for expert opinions, attorney’s charges, legal fees, and so on. An analogous regulation can be found also in the Act on Administrative Proceedings.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 the Slovak Republic, 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.
There are no legal or administrative proceedings of enforcement of rights against infringed goods other than those already described in earlier answers that would be established by the law of the Slovak Republic. It is necessary to mention that destruction of materials or goods is not legally established at present and competent bodies would resort to it only in case of criminal responsibility and subsequent penalty consisting of forfeiture or seizure of goods. However, a specific law relating to border measures is under consideration.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 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 the Slovak Republic 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.
The right resulting from Article 47 of the TRIPS Agreement is established by Section 25, paragraph 2 of the Act on Trademarks, No. 55/1997, Digest of Laws. The right of information from everyone who distributes or intends to distribute infringed goods, can be enforced by the right holder by legal action; the only condition is that the action has to be filed and the right to the particular trademark has to be proved. In case the third party does not respect the decision of the court, the court is able to fine the third party as a part of execution of the decision. Subsequently a legal action for the criminal offence of interfering with the sentence can be filed.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 24. 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 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.
This question has already been answered in the answer to question 4. The legal liability of the State for the injury caused by unlawful legal decision or by a wrongful administrative procedures, is not limited by the fact that the body in question or its representatives took actions in good faith. What is decisive is whether there occurred any unlawful decision or wrongful administrative procedure and whether any harm has been caused.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 25. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to order prompt and effective provisional remedies to prevent an infringement of any intellectual property right. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please identify the provisional measures available to protect intellectual property rights. Please cite the relevant legal authority establishing those provisional remedies.
Proceedings designated as provisional measures are regulated by Section 74 and following of the Slovak Code of Civil Procedure. The enforcement of provisional measures was described in answer to question 1. Provisional measures can be ordered by the relevant legal authority at the suit of the affected person.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 26. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged infringement. Please identify the provisional measures available to preserve relevant evidence in regard to an alleged infringement and cite the relevant legal authority.
Pursuant to Section 78 of the Slovak Code of Civil Procedure, the court can preserve relevant evidence at the suit, before the initiation of the proceeding on the merits of the case, if there is a risk that this evidence could not be provided later, or could be provided only with great difficulty. The evidence in question is then preserved by the court competent to proceed on the merits, or by the circuit court in the circuit where the evidence is endangered. Preservation of evidence is effected by the judge in manners set for presenting evidence in legal procedures.
05/05/1999
IP/Q4/SVK/1 République slovaque États-Unis d'Amérique 27. Articles 50.2 and 50.8 require Members to authorize judicial and administrative authorities to adopt provisional measures inaudita altera parte. With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement, please describe briefly the circumstances in which the judicial and administrative authorities are empowered to adopt provisional measures inaudita altera parte and cite the relevant legal authority.
This question applies to the already-mentioned notion of provisional measures, ordered by the court at the suit, and to be decided by the court until up to 30 days since the filing of action with the competent court authorised to proceed on the merits of the case. Provisional measures can be ordered if it is necessary to regulate the terms of the parties temporarily, or if there is a risk of enforcement of the court decision being endangered.
05/05/1999

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