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 502 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 10. Please describe in detail the manner in which the higher level of protection required for wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the relevant provisions of law or regulation, and provide examples of geographical indications for such products.
The draft Geographical Indications Act does not provide a higher level of protection for wines and spirits.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 11. Please describe the procedure that must be followed to obtain protection for textile designs and cite to the relevant provisions of law or regulation.
The Textile Designs (Registration) Decree 1973 provides for a registration system, publication of applications, an opposition procedure and term of protection of five years renewable for two consecutive periods of five years each for textile designs. To obtain textile design protection, Section 3(1) of the Textile Designs (Registration) Decree, 1973 NRCD 213 requires that an application in the prescribed form must be lodged with the Registrar. Section 3(2) of the law empowers the Registrar to make searches and request for such information as he may think fit. Where the application for registration of a textile design has been accepted, Section 6(1) of the Act requires that, the application is published in the Gazette for possible opposition. Where there is no opposition, the registrar upon payment of the prescribed fee register the textile design as required by section 7(1) of the Act. Textile designs are protected under the draft Industrial Designs Act. Under Section 5 of the draft law, a person may apply to the Registrar for the registration of an industrial design. The application for the registration shall contain among others, drawings, photographs or other adequate graphic representations of the article embodying the industrial design. Sections 6 to 8 of the draft law require the Registrar to examine the design and if satisfied that the requirements of the flaw have been complied with and the prescribed application fee paid, register the textile design and publish a reference to it in the Gazette and issue to the applicant a certificate of registration of the textile design. Where there is an opposition to the registration of the textile design after publication in the Gazette, the Registrar is to seen a copy of the notice of the opposition and the applicant within the prescribed period and in the prescribed manner is required to send to the registrar a counter-statement of the grounds on which the applicant relies for the application. The Registrar is to hear the parties if either or both wish to be heard and after considering the merits of the case take a decision on the application. The duration of the registration of a textile design as stated under section 10 is for a period of five years renewable for two further consecutive periods of five years upon payment of the prescribed fee.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 12. Please describe in detail the way in which the patent law of Ghana implements Article 27 of the TRIPS Agreement, indicating any exceptions provided for, and including details regarding the protection for micro-organisms and non-biological and microbiological processes and plant varieties. Please cite to the relevant provisions of the law.
The Patent Law PNDC Law 305A provides patent protection in all fields of technology and a patent term of ten years renewable subject to local working for two consecutive terms of five years. Section 1(3) of the Patent Law provide exclusions from patentability which include: (a) Methods of treatment of human or animal body by surgery or therapy as well as diagnostic methods; (b) plant or animal varieties or essentially biological processes for the production of plants or animals. Section 6 of the Patent Law also excludes inventions of the prevention within Ghana of the commercial exploitation of which is necessary to protect public order or morality. The draft Patent Act provide for patent protection for any invention whether products or processes in all fields of technology. The draft Patent Act also allow patent rights enjoyable without discrimination as to the place of invention. the field of technology whether the products are imported or locally produced. Exclusions from patentability are also provided under the draft Patent Act. The exclusions include: (a) methods for treatment of the human or animal body by surgery or therapy as well as diagnostic methods practised on the human or animal body; this provision shall not apply to products for use in any of those methods; (b) inventions, the prevention within Ghana of the commercial exploitation of which is necessary to protect public order or morality, which includes: (i) the protection of human, animal or plant life or health; or (ii) the avoidance of serious prejudice to the environment; (c) biological processes for the protection of plants or animals other than non biological processes; (d) plant varieties. The draft Patent Act offers patent protection for micro organisms non biological and microbiological processes. The provisions which exclude certain inventions from patentability do not apply to micro organisms, non biological and micro biological processes. The draft Patent Act is fully in compliance with Article 27 of the TRIPS Agreement. Plant varieties are to be protected by an effective sui generis system. The draft Act is soon to be presented to parliament.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 13. Please describe in detail the rights provided patent holders under the patent law of Ghana and cite to the relevant provisions of law.
Section 28 of the Patent Law 1992 confers exclusive right to the patent owner where the subject-matter of a patent is a product to prevent others from the acts of making, using offering for sale, selling or importing for these purposes the product. In the case where the subject-matter of a patent is a process, the exclusive right conferred will prevent others from the act of using, offering for sale selling or importing for these purposes at least the product obtained directly by that process. The draft Patent Act also contain provisions on the rights of the patent owner. Under the draft Patent Act, the exploitation of a patent requires the consent of the owner. The draft law defines exploitation to mean any of the following: (a) where the patent has been granted in respect of a product: (i) making importing offering for sale selling and using the products; (ii) stocking the product for the purposes of offering for sale, selling or using; (b) where the patent has been granted in respect of process: (i) using the process; or (ii) doing any of the acts referred to in paragraph (a) in respect of a product obtained directly by means of the process. The provisions in the draft law also empower the owner of the patent to institute court proceedings against any person who infringes the patent by performing any of the acts referred above or who performs acts which may lead to infringement. These provisions of the draft Patent Law are in full compliance with Article 28 of the TRIPS Agreement.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 14. Please describe in detail any provisions in the laws of Ghana permitting unauthorized use of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which such use can occur.
The Patent Law 1992 contains provisions permitting unauthorised use of patent. Section 30 of the Patent Law 1992 lists the circumstances in which the law allows unauthorised use of patent. These includes acts done for scientific research; acts in respect of articles which have been put on the market in Ghana by the owner of the patent or with his express consent and the use of articles on aircraft, land vehicles or vessels of other countries which temporarily or accidentally enter the airspace territory or waters of Ghana. Unauthorised use of a patent is also permitted under the patent law, sections 45, 46 and 47 through compulsory licensing in the following circumstances: (i) compulsory licensing for non working of the patent; (ii) compulsory licensing based upon interdependent of patents; (iii) compulsory licensing for products and processes declared to be of vital importance. The Patent Law 1992 under section 54 also allows exploitation of patented inventions by Government or third persons authorised by Government. The provisions for compulsory licensing are not in full compliance with Article 31 of the TRIPS Agreement. The draft Patent Act contains provisions for unauthorised use of a patent. The circumstances under which unauthorised use of a patent is permitted under the draft Patent Act are as follows: (a) Acts in respect of articles which have been put on the market in any country by the owner of the patent or with the owner's consent. This relates to exhaustion of patents rights. Under this principle once a patented article has been lawfully put on the market, the patent owner's right in respect of that products is exhausted. The TRIPS Agreement in its Article 6 does not establish which level exhaustion members shall adopt, subject to its provision on national treatment and most-¬favoured national treatment. (b) The use of articles on aircraft vehicles or vessels of other countries which temporarily or accidentally enter the airspace, territory or waters of Ghana. This aimed at avoiding a situation in which the exercise of the exclusive right might be prejudicial to the public interest on maintaining free movement of vessels and aircraft. (c) Acts done only for experimental purposes relating to patent invention. This concerns acts clone for non commercial purposes. (d) Acts performed by a person who in good faith, before the filing or where priority is claimed, the priority date of the application on which the patent is granted and in Ghana was using the invention or was making effective and serious preparations for such use. This limitations recognises the prior user's right established by good faith prior use or serious preparation for such use within the territory of Ghana. The right does not extend to use which is deferent on nature or purpose from the actual prior use or in the case of preparations envisaged prior use. The draft Patent Act contains provisions on compulsory licensing and government use without the authorisation of the right holder. Government use and compulsory licensing of patents in the draft Patent Act are subjected to conditions aimed at protecting the legitimate interest of the right holder. These conditions are contained in Article 31 of the TRIPS Agreement. These conditions are listed below: • An application to use the subject matter of a patent must be considered on its individual merit. • There must be an unsuccessful attempt first to obtain a voluntary licence on reasonable commercial terms and conditions within a reasonable period. • The licence must be non exclusive. • The use must be authorised predominantly for the supply of the domestic market. • The right holder must be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the licence. • The scope and duration of such use without the authorisation of the right holder must be limited to the purpose for which it was authorised. • The decision on the grant and remuneration is to be subjected to judicial review.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 15. What term of protection does the patent law of Ghana provide for patents? Please describe any provisions for extension of the term of protection and cite to the relevant provisions of the law.
Section 31 of the Patent Law 1992 PNDC Law 305A provides for a patent term of ten years renewable subject to local working for two consecutive terms of five years each. There is no extension of the term of protection under the Patent Law 1992. The draft Patent Act grants a patent term of twenty years after the filing date of the application for patent. There is no extension of the patent term under the draft Patent Law.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 16. Please describe in detail the protection for layout-designs of integrated circuits provided under the laws of Ghana, including the term of protection, and cite to the relevant provisions of law.
The draft Layout Designs (Topographies) of Integrated Circuit Act provides protection for layout-designs that are original in the sense that they are the result of the creator's own intellectual effort and are not common place among creators of layout designs and manufacturers of integrated circuits at the time of their creation. The term of protection is ten years instead of eight years as prescribed in the treaty on Intellectual Property in respect of integrated circuits. The exclusive rights provided in the draft law include the rights of reproduction, sale and importation, sale and other distribution for commercial purposes. The draft law also protects articles containing infringing integrated circuits. The provisions of the draft Layout Designs (Topographies) of 1ntegrated Circuits Act are in full compliance with Articles 36 and 38 of the TRIPS Agreement.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 17. Please describe in detail how the laws of Ghana provide for the protection of undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide citations to the relevant provisions of law.
The protection Against Unfair Competition Act 2000 Act 589 provide for the protection of undisclosed information. Section 5 of the Protection against Unfair Competition Act is based on Article 39 of the TRIPS Agreement which deals with secret information. Section 5(3) of the act states that protection must apply to information that is secret, that it has commercial value because it is secret and that is has been subject to reasonable steps to keep it secret. Section 5(1) does not require undisclosed information to be treated as a form of property, but it does require that a person lawfully in control of such information must have the possibility of preventing it form being disclosed to acquired by or used by others without his or her consent in a manner contrary to honest commercial practices. Under Section 8(1) of the Act, a person may seek redness for any act practice of industrial or commercial activities that results in the disclosure, acquisition or use by another of his secret information without his consent and in a manner contrary to honest commercial practices. The remedies available to a person who brings an action for acts of unfair competition include the following: a. an order of injunction to prevent the act or further acts or of unfair competition; b. a provisional order to prevent unlawful acts or to reserve relevant evidence; c. the award of damages as compensation; d. any other remedy as the court may consider fit to order.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 18. Please describe in detail the manner in which protection is provided test data regarding pharmaceutical and agricultural chemical products submitted to the government in order to obtain marketing approval in Ghana and cite to the relevant provisions of law.
Section 5(4) of the Protection Against Unfair Competition Act. contains provisions for the protection of undisclosed test data and other data whose submission is required by the statutory bodies responsible for approving the marketing of pharmaceutical or agricultural chemical products which use new chemical entities. Exceptions to the protection of test data and other data are stated in section 5(4)(b) under the section disclosure can be made where it is necessary for the protection of the public and also where steps are taken to ensure that the data are protected against unfair commercial use. Civil remedies are available to an aggrieved person whose secret test data or other data has been disclosed. Section 8(1) allows the aggrieved person to bring an action for: a. an order of injunction to prevent the act or further acts of unfair competition; b. a provisional order to prevent unlawful acts or to preserve relevant evidence; c. the award of damages as compensation; and d. any other remedy as the court may consider fit to order. Sections 5(4) and 8(1) of the Protection Against Unfair Competition Act comply with Article 39.3 of the TRIPS Agreement.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 19. Are other applicants for marketing approval for their own versions of a previously approved pharmaceutical or agricultural chemical products permitted to rely on data submitted by the earlier applicant? If so, how long a period of exclusivity is given the earlier applicant before such reliance becomes possible.
There are no applicants for marketing approval for their own versions of previously approved pharmaceutical or agricultural chemical products.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 20. Please describe in detail the manner in which the laws of Ghana provide for effective action against infringement of intellectual property rights as required by Article 41.1 of the TRIPS Agreement.
The legal system of Ghana is the common law and matters relating to remedies for infringement of intellectual property rights are dealt with under the general law of civil procedure. The remedies that may be ordered by the judicial authorities are: a. Injunctions; b. damages; c. destruction or other disposal of infringing goods and materials/implements for their production; d. any other remedy. Injunctions Under the general jurisdiction of the court and under the various intellectual property laws the courts may grant relief for infringement in the form of an interlocutory or perpetual injunction. The courts may grant an interlocutory injunction if the court is satisfied that there is a serious issue to be tried and if the risk of damage to the plaintiff should the injunction not granted will not he compensated by an order for damages provided that the plaintiff gives an undertaking to compensate the defendant if it turns out that there was no jurisdiction for the injunction. Damages Under the general jurisdiction of the court and the provisions of the various intellectual property the courts have power to award damages for infringement or if the plaintiff desires an account for profit. Damages usually include the recovery of commercial losses associated with the infringement and flagrancy of the infringement shall be taken into account deciding whether additional damages should be awarded. An award of damages would normally be accompanied by an order for payment of legal cost incurred by the successful party. The order for costs is to enable the successful party to recover a sum corresponding to the reasonable sums which were expanded in the litigation. Destruction or disposal of infringing goods and material/implements for the products The courts have Jurisdiction to order defendants to deliver infringing goods and copies as well as materials or implements used in their production. Any other remedies As an alternative to an award of damages the right holder may seek an account of profits instead of damages. This requires the court to assess the profits which the infringer has made as a result of his infringing act and pay this over to the right holder.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 21. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order production of evidence necessary to substantiate a party’s claims where that party has been unable to obtain such evidence from the opposing party. Please describe how the laws or regulations of Ghana provide this authorization, citing to the relevant provisions of law or regulation.
The courts have authority to order the production of documents in court by virtue of the rules of court. A party to litigation has an obligation either automatically or upon order of the Court to give discovery of any document which it may have in its custody, possession or control which relates to the issues in the proceedings before the court.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 22. Please describe in detail all of the civil remedies that are available to right holders under the laws of Ghana, citing to the relevant provisions of law or regulation.
The intellectual property legislation and the civil law of Ghana offer the following remedies to right holders: a. damages including recovery of profits and expenses including attorney's fees; b. injunctions; c. destruction or other disposal of infringing goods and materials or implements for their production; d. any other remedy. Damages Damages can be awarded against persons who infringe intellectual property rights by the courts under its general jurisdiction and also as provided under the intellectual property legislation. The right holder can also request for account for profit. The Patent Law 1992 under Section 59 specifically provides for the grant of injunctions, damages or any other remedy provided for by law. The draft laws on Geographical Indications, Layout Designs (Topographies) of Integrated Circuits, Trade Marks and Industrial Designs specifically provide for award of damages for infringements. The damages will usually include the recovery of commercial losses associated with the infringement and the flagrancy of the infringement will be taken into account in deciding the quantum of damages. An award of damages would normally be accompanied by an order for payment of legal costs incurred by the successful party. Injunctions The High Court has powers to grant an order for injunction and various intellectual property laws also specifically provide for the grant of injunctions. An injunction is granted where the court is satisfied that there is a serious issue to be tried and on the balance of convenience it is an appropriate remedy. Destruction or other disposal of infringing goods and materials or implements for their production The courts have jurisdiction to order defendants to deliver infringing goods and copies as well as materials or implements used in their production. Any other remedy As an alternative to an award of damages the right holder may apply for an account of profits instead of damages. This requires the court to assess the profits which the infringer has made as a result of his infringing act and to pay this over to the right holder.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 23. Please describe in detail the provisional procedures and remedies available to right holders under the laws of Ghana, citing to the relevant provisions of law and regulation, and indicate any condition under which a right holder may avail itself of those procedures and remedies.
(i) The Court may grant an Anton Pillar Order after the case has started. Under this order the defendant is required to admit onto his premises a person named in the order to search for and take into custody any document and any things specified in the order to preserve the evidence for trial. (ii) The Court also has powers to adjudicate on the enforcement of intellectual property rights and take provisional measures before the full trial including the grant of interlocutory injunctions. (iii) The Court can also award interim damages. The right holder must show that it is likely that at a full trial a substantial award of damages will be made by the court and pending the assessment of the issues at trial there should be an interim payment.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 24. Please describe in detail the procedures under the laws of Ghana that provide for border enforcement at least for trademark counterfeiting and copyright piracy, identifying the competent authority and citing to the relevant provisions of law or regulation.
Section 1 of the Merchandise Marks Act 1964 makes it an offence for any person who falsely applies to goods any trade mark or any mark so nearly resembling a trade mark as to be likely to deceive. The person is guilty of misdemeanour and when convicted any goods and things of any kind by means of or in relation to which the offence is committed shall at the discretion of the court be forfeited to the Republic. Section 12 of the Merchandise Marks Act empowers the comptroller of customs upon representation made to him that the use of trade mark is fraudulent to order the importer or his agent to produce any documents in his possession relating to the goods and also furnish information as to the name and address of the person by whom the goods were consigned to Ghana; and the name and address of the person to whom the goods were sent in Ghana. The comptroller may communicate to any person whose trade mark is being infringed any information obtained from the importer of the goods or his agent.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 25. Please indicate if border enforcement is available to owners of other forms of intellectual property and, if so, please describe the procedures and remedies available in relation to each form of intellectual property, citing the relevant provisions of law.
Under section 12 of the Merchandise Marks Act, the Comptroller of Customs may seize goods imported into the country if he is satisfied that the use of a trademark is fraudulent. The comptroller may ask the importer of the goods or an agent of the importer to produce any document in relation to the goods and give information about the name mid address of the person by whom the goods were consigned to Ghana and the name and address of the person in Ghana to whom the goods were consigned. Failure to comply with this request is an offence and renders the defaulter liable to a fine.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 26. Article 58 of the TRIPS Agreement specifies procedures to be followed where the competent authorities can act ex officio. Please explain whether the competent authorities in Ghana are empowered to act ex officio and, if so, please identify the intellectual property areas subject to ex officio action.
There are no provisions for competent authorities to act ex officio.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 27. Please describe in detail how the laws of Ghana implement Article 61 of the TRIPS Agreement that requires Members to 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. Please cite to the relevant provisions of law and regulation.
The draft Trade Marks Act provides for criminal sanctions for intentional infringement of a trademark. Under the draft Law, a person who knowingly infringes a trademark is guilty of an offence punishable by a fine or by imprisonment for a term of 2 years.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 28. 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. Please describe the provisions in the laws of Ghana that provide for such remedies, and describe the circumstances in which those remedies would be imposed, citing to the relevant provisions of law or regulation.
The courts have jurisdiction to order defendants to deliver infringing goods and copies as well as materials or implements used in their production. There is also a provision under section 1(3) of the Merchandise Marks Act 1964 for the forfeiture of any goods and things of any kind by means of which an infringement of trademarks is committed.
09/02/2004
IP/Q/GHA/1, IP/Q2/GHA/1, IP/Q3/GHA/1, IP/Q4/GHA/1 Ghana États-Unis d'Amérique 29. Article 61 also indicates that Members may provide for criminal procedures and penalties in cases of wilful infringement of other forms of intellectual property. Please describe any provisions of the laws of Ghana that provide for such procedures and remedies, citing to the relevant provisions of law or regulation.
Section 72 of the Patent Law 1992 provides for a fine and imprisonment of not more that two years or both for international infringement. The Merchandise Marks Act, 1962 also contains provisions making false application to goods of any trade mark a misdemeanour. Under the draft Trade Marks Act wilful infringement of a trademark, is an imprisonment for a term of two years.
09/02/2004

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