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.

* Vous n'êtes PAS obligé(e) de sélectionner tous les champs de recherche ci-dessous (uniquement les champs qui sont pertinents pour votre recherche).
* Veuillez noter que les critères de recherche sélectionnés sont cumulatifs et figureront tous dans les résultats de votre recherche.


Page 491 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 30. Article 55 provides that a review of the suspension measures is to take place within a reasonable time at the request of the defending party to determine if the suspension measures should be modified, revoked or confirmed pending the outcome of the proceeding on the merits. Please identify the forum that is authorized to conduct such a review and describe the procedure. Please cite the law or regulations providing for these procedures.
Under Subsection 53.1(6) of the Trade-marks Act and section 44.1 of the Copyright Act, suspension measures ordinarily become null and void after two weeks, unless an action to determine the legality of the importation has been commenced and the Minister of National Revenue has been so notified. In addition, where appropriate, a party affected by the suspension measure could apply to the court to have it vacated or varied, upon motion with notice to the other party.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 31. Article 56 requires that the authorities be able to require the applicant to compensate the defending party for any injury caused if the detention of goods was unfounded. Please describe the manner in which such compensation can be ordered by the appropriate authorities and the factors considered in deciding on the amount of compensation.
Under Subsection 53.1(3) of the Trade-marks Act and Section 44.1 of the Copyright Act, the court may require security from the plaintiff. In addition, within the context of an action contemplated under Section 53.1 or Section 44.1, or in connection with an action against the individual responsible for the wrongful detention of the goods for copyright infringement, the court may order compensation by way of damages. Factors relative to the quantum of such damages might include any loss in value of the goods between the time of their detention and release, or the conduct of the plaintiff.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 32. Article 57 also requires that, where the decision on the merits favours the right holder, the competent authorities also may be given authority to give the right holder information regarding the importer, consignee or consignor. If competent authorities in Canada can provide information regarding the importer, consignee or consignor to the right holder, please explain how information regarding names and addresses of consignors, importers and consignees and quantities of goods are provided to the applicant after a positive decision of infringement is made, e.g., authorities automatically providing information or by submission of a written request from the right holder, etc., and cite to the law or regulations providing such authority.
There is no requirement that the court order the disclosure of information concerning the importer, consignee or consignor to the right holder. It is noted that the provision in the second sentence of Article 57 of the TRIPS Agreement is permissive, not mandatory.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 33. Article 59 identifies the remedies that are to be available, including destruction or disposal of infringing goods outside the stream of commerce. Please explain what the law in Canada permits regarding the disposition of infringing goods, i.e., does the law allow for destruction, disposal or both. Please cite to the law or regulations providing such authority.
Under Subsection 53.1(7) and Section 53.2 of the Trade-marks Act, and under Sections 34 and 44.1 of the Copyright Act, the court may order the destruction or disposal of infringing goods.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 34. 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 Canada.
Customs has no de minimis provisions for intellectual property rights. Customs officials will detain what the court directs them to detain. However, in the case of copyright works, certain limited exceptions apply under Section 45 of the Copyright Act.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique [Follow-up question from the US] The Government of Canada states that, with respect to detention of infringing copyright works by customs authorities, "certain limited exceptions apply under section 45 of the Copyright Act". Please describe those limited exceptions.
Section 45 of the Copyright Act provides as follows: "1. Notwithstanding anything in this Act, it is lawful for a person: (a) to import for their own use not more than two copies of a work or other subject-matter made with the consent of the owner of the copyright in the country where it was made; (b) to import for use by a department of the Government of Canada or a province copies of a work or other subject-matter made with the consent of the owner of the copyright in the country where it was made; (c) at any time before copies of a work or other subject-matter are made in Canada, to import any copies, except copies of a book, made with the consent of the owner of the copyright in the country where the copies were made, that are required for the use of a library, archive, museum or educational institution; (d) to import, for the use of a library, archive, museum or educational institution, not more than one copy of a book that is made with the consent of the owner of the copyright in the country where the book was made; and (e) to import copies, made with the consent of the owner of the copyright in the country where they were made, of any used books, except textbooks of a scientific nature, technical or scholarly nature for use within an educational institution in a course of instruction. (2) An officer of customs may, in the officer's discretion, require a person seeking to import a copy of a work or other subject-matter under this section to produce satisfactory evidence of the facts necessary to establish the person's right to import the copy."
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 35. Article 61 of the TRIPS Agreement requires that Members have criminal procedures and penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful trademark counterfeiting and copyright infringement on a commercial scale. In IP/N/6/CAN/1, Canada describes the criminal provisions of its intellectual property laws, including those that apply to copyrights, but criminal provisions in connection with trademark counterfeiting are not discussed. Please describe the provisions in the law of Canada that provide for criminal action in connection with trademark counterfeiting.
See the response to question 36 below.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 36. Article 61 also requires that remedies in appropriate cases include the seizure, forfeiture and destruction of infringing goods and any materials and implements the predominant use of which has been the commission of the offence. IP/N/6/CAN/1 contains information regarding criminal penalties in connection with copyrights but does not discuss trademark counterfeiting. Please explain the provisions in the law of Canada that provide criminal remedies for trademark counterfeiting, describe the circumstances in which those remedies would be imposed and provide legal citations.
Section 406 of the Criminal Code provides as follows: "For the purposes of this Part, every one forges a trademark who (a) without the consent of the proprietor of the trademark, makes or reproduces in any manner that trademark or a mark so nearly resembling it as to be calculated to deceive; or (b) falsifies, in any manner, a genuine trademark." Section 407 states that: "Every one commits an offence who, with intent to deceive or defraud the public or any person, whether ascertained or not, forges a trademark." This section creates the offence of forging a trademark. That offence is committed where the acts described in Section 406 are done with the intention to deceive or defraud any person or the public. Other related offences are contained in sections 407 to 411. Section 412 provides that that offence may be prosecuted by indictment, with a maximum punishment of imprisonment for two years, or by summary conviction. Anything by means of or in relation to which any of these offences is committed is forfeited upon conviction, unless the court orders otherwise.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 37. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for wilful trademark counterfeiting and copyright piracy. Please explain how the penalties provided under the laws of Canada comply with that obligation.
See the answer to question 36, for trademarks. A person who is convicted of an offence under Section 42 of the Copyright Act is liable: "(f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both; or "(g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both."
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique [Follow-up questions from the US] 1. Please provide statistical information related to civil copyright, trademark, geographical indication, industrial design, patent, integrated-circuit layout design, and trade secret enforcement for each of the years 1996 and 1997, including the number of cases filed; injunctions issued; infringing products seized; infringing equipment seized; cases resolved (including settlement); and the amount of damages awarded.
In 1996, 641 lawsuits fitting the above description were initiated in Canada; and in 1997, 273 (to June 30). The median time between commencement and disposition in 1996 was 24 months (to judgement) or four months (to settlement); in 1997 (to June 30), 17 months or seven months, respectively. Apart from the foregoing, statistical information of the nature requested is not available in Canada.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada États-Unis d'Amérique 2. Please provide statistical information related to criminal enforcement in the area of copyright piracy and trademark infringement for each of the years 1996 and 1997, including the number of raids, prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines were paid and whether the jail term was actually served or was suspended) and any other information establishing that the criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Compilation of criminal infringement charges laid by the Royal Canadian Mounted Police (RCMP) is not available for all provinces and territories for 1996 and 1997.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Hong Kong, Chine 1. Is it correct to say that intellectual property infringement cases often end in the interim interlocutory stage? If yes, what seem to be the reasons? Is this desirable in the interest of justice?
By virtue of the costs associated with litigation, and other practical factors, it may happen that an interlocutory injunction will, from a practical point of view, dispose of an intellectual property right infringement action.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Hong Kong, Chine 2. In civil proceedings, are there any proof facilitation provisions which could create legal presumptions of intellectual property subsistence and ownership and thus could excuse the right owner from appearing in court and to testify these issues? If not, why?
There are several provisions, such as Section 55.1 of the Patent Act and subsection 53 (2) of the Copyright Act, which provide rebuttable presumptions only. They would not have the effect of excusing the right owner from appearing in court.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Hong Kong, Chine 3. Does any intellectual property enforcement agency have the legal power to seize and forfeit suspected infringing articles, whether or not a charge has been laid? If not, why?
In Canada, criminal procedures for the enforcement of intellectual property rights are under the supervision of the courts. Subsection 42 (3) of the Copyright Act allows the court, in the context of a prosecution for an offence under subsection 42 (1), to deal with infringing copies or plates as it sees fit, whether the alleged offender is convicted or not. As regards counterfeit trademarked goods, upon conviction of an offence under sections 407-411 of the Criminal Code, anything by which a person commits such an offence is forfeited.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Hong Kong, Chine 4. Is there a specialized criminal intellectual property enforcement agency? If not, what is the rationale?
No.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Hong Kong, Chine 5. In criminal proceedings, are there any proof facilitation provisions which could create legal presumptions of intellectual property subsistence and ownership and thus could excuse the right owner from appearing in court and to testify these issues? If not, why?
See Canada's response to question 2, above.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Japon 1. Please indicate the "competent authorities" stipulated in Article 51 of the TRIPS Agreement.
Under the Copyright Act and the Trade-marks Act, the right holder will apply to the courts for an order directing Customs officials to detain suspected infringing goods. Thus, the "competent authorities" in Canada for the purposes of Article 51 of the TRIPS Agreement are the courts.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Japon 2. Please explain whether "proceedings leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement, are judicial or administrative.
"Proceedings leading to a decision on the merits of the case" are judicial.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Japon 3. Are there any ways other than the application stipulated in Articles 51 and 52 of the TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder to request the competent authorities to suspend the release of the goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights?
Yes - under section 14 of the Integrated Circuit Topography Act.
12/10/1998
IP/Q4/CAN/1/Rev.1 Canada Japon 4. Please explain what term your country regards as "a reasonable period within which the competent authorities shall inform the applicant whether or not they have accepted the Application" stipulated in Article 52 of the TRIPS Agreement.
Where the applicant has a prima facie case of infringement, the court would ordinarily issue an order without delay. Such applications are normally brought on and determined expeditiously, i.e. within a few days.
12/10/1998

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