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.


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Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q4/SWE/1 Suède Japon 14. Please explain the procedures of detentions and seizures to be ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
The procedures referred to in the question are explained in Sweden's response to question 16 of the Checklist of Issues on Enforcement. They imply essentially the following. A right-owner may apply in writing to the customs authority for an action against the import of counterfeit or pirated goods. The application shall contain a sufficiently detailed description of the goods and evidence that the application is actually the right-owners in relation to the goods. Following an examination of the application the customs authority may suspend the release of the goods or retain them. Where the relevant customs authority has not within ten days from the application been informed of the fact that the matter has been referred to the competent authority, the goods shall be released; this period may, however, where necessary be extended by not more than ten days. The customs authority may request the applicant to provide a security in order to guarantee his obligations towards the persons affected by the action and the payment of the costs for the keeping of the goods by the customs authority. The owner, importer or receiver of the goods may request the release of the goods, against providing of a security in order to protect the interests of the right-owner.
26/08/1998
IP/Q4/SWE/1 Suède Japon 15. Please explain the procedures to appeal against any decisions ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
As mentioned above, decisions by the customs authority in matters concerning the suspension of infringing goods may be appealed against to the administrative courts. Detailed provisions in this respect are contained in the Act on Administrative Procedures (Act 1971:291). In principle the proceedings are conducted in written form. The decisions by a County Administrative Court may be appealed against to the Central Administrative Court in order for the matter to be considered by that Court, only on special conditions, for instance that it is of importance for the judicial practice that the matter is reconsidered or where there is a special reason to change the decision by the County Administrative Court. Decisions by the Central Administrative Court may be appealed against to the Supreme Administrative Court, which will, however, only consider the matter if there are very special reasons to reconsider the lower Court's decision.
26/08/1998
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/USA/1 États-Unis d'Amérique Hong Kong, Chine [Questions posed to several Members] 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?
The following table indicates the stages at which cases in US Federal courts involving copyrights, patents, and trademarks were terminated for the twelve months ending 30 June 1997. [Part of the response is in Table format] The data indicate that the vast majority of cases are resolved through settlement before action begins or during the discovery phase. Discovery provides each side with information allowing it to evaluate its position and the likelihood of success if it pursues action on the merits of the case. Resolution in this manner is desirable and, since it comes about as a result of decisions of the parties themselves, justice is served.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique 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 is no absolute obligation for a right owner to appear in court and testify to demonstrate the existence of a particular form of intellectual property or of its ownership. Other evidence, including documents, affidavits, the testimony of other parties etc., can often be substituted for personal appearances by the right owner. US law does contain some "proof facilitation provisions". Copyrights: See 17 U.S.C. § 410 under which a copyright certificate of registration made before or within five years after first publication constitutes prima facie evidence of the validity of the copyright and of the facts stated in the certificate, including the name of the copyright claimant. Trademarks: See 15 U.S.C. § 1057(b) under which a trademark certificate of registration on the principal register serves as prima facie evidence of validity of the registered mark and of the registrant’s ownership of the mark. Patents: See 35 U.S.C. § 282 under which patents are presumed to be valid. Integrated Circuit Layout-Designs: See 17 U.S.C. § 908(f) under which the certificate of registration of a mask work constitutes prima facie evidence of the facts stated in the certificate, including the name of the claimant. Trade Secrets: There is no presumption in relation to trade secrets since the existence of a trade secret is a matter of proof.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique 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?
It is not completely clear what is meant by "a charge" being laid. We interpret it to mean a criminal charge or indictment has been made against the person whose property is being seized. Section 509 of the Copyright Act, 17 U.S.C. § 509, provides for the seizure and forfeiture of infringing copies and articles of infringement used in criminal copyright infringement. The seizures are performed by agents, officials or persons authorized by the US Attorney General. These procedures can be instituted upon the government's showing of probable cause; a criminal indictment or criminal conviction is not required.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Hong Kong, Chine 4. Is there a specialized criminal intellectual property enforcement agency? If not, what is the rationale?
The US Department of Justice enforces the criminal provisions of US intellectual property laws. It deals with all enforcement of federal criminal laws, not just those dealing with intellectual property, but it does have specialists within the Department who deal with violations involving intellectual property.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique 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 reply to question 2 above.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Hong Kong, Chine [Questions posed to the US only] 1. Are there any statutory minimum damages for intentional or negligent intellectual property infringements? If yes, is the judiciary content that its judicial discretion has been curtailed?
In the case of copyrights, 17 U.S.C. § 504(c) provides statutory damages, which a copyright owner may elect instead of actual damages. For each work infringed, the minimum amount that can be awarded under the section, based on the circumstances, is US$200 and the maximum is US$100,000. As apparent from the amounts, judges have considerable discretion in determining the actual amount awarded and, therefore, would not likely consider their discretion unreasonably curtailed. In the case of patents, damages may not be less than a reasonable royalty for the use made of the invention by the infringer if the infringer had notice that the invention in question was patented. A substantial amount of discretion is involved in determining what would be a "reasonable royalty". See 35 U.S.C. §§ 284 and 287.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Hong Kong, Chine 2. Is parallel import of articles infringing intellectual property rights (especially copyright) a criminal offence? If yes, please quote the relevant legislation or hallmark cases.
In the case of copyright, yes. Section 506(a) defines criminal copyright infringement as follows: "(a) Criminal infringement - Any person who infringes a copyright wilfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18." Section 501(a) defines an "infringer of a copyright" as "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118, ... , or who imports copies or phonorecords into the United States in violation of section 602, ...". The relevant part of Section 602 states that "Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501, ...". Penalties for criminal copyright infringement are set forth in 18 U.S.C. § 2319.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 1. 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.
Under US law, "proceedings leading to a decision on the merits of a case" referred to in Article 55 of the TRIPS Agreement are customarily administrative, but parties also can proceed judicially, either initially or after they have exhausted administrative remedies.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 2. Are there any ways other than the application stipulate 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?
The right holder can obtain protection for trademarks and copyrights for a period of ten years, renewable for the duration of the underlying right, by following the Customs recordation process set out in §§ 133.01 to 133.15 (regarding trademarks) and 133.31 to 133.37 (regarding copyrights) of title 19 of the Code of Federal Regulations (C.F.R.).
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 3. 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.
The period will be set out in amendments to the Customs Service's regulations that are currently under review and pending approval.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 4. Please indicate provisions of laws and ordinances which prescribe the "proceedings leading to a decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement. And please summarize their contents.
Regulations governing such proceedings are found at 19 C.F.R. §§ 133.21 through 133.23a, which govern limitations on the importation of articles bearing recorded trademarks, notice to the parties, and detention and seizure of the articles. Proceedings governing articles that infringe copyrights are found at 19 C.F.R. § 133.43, which provides for notice to importer and the copyright owner and for an opportunity for them to exchange written materials stating their views on the question of piracy and rebutting the views of the other party before the articles are submitted to Customs headquarters for a decision .
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 5. Please explain the specific procedure, if any, to be applied to the goods which are not evident whether or not they infringe intellectual property rights, in Article 55 of the TRIPS Agreement.
We assume that the question refers to procedures involving infringement of rights other than trademarks and copyrights, since these procedures are the basis for earlier questions. Customs does not have independent authority to detain goods that infringe patents, industrial designs, or trade secrets. The US International Trade Commission has authority under section 337 of the Tariff Act of 1930 to order the Customs Service to deny entry to goods the USITC determines are infringing such rights.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 6. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they fail to suspend the release into free circulation of goods which infringe intellectual property rights with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
Customs officials are responsible for making their decisions in good faith in accordance with the authority granted to them by statute. Decisions of the Customs Service are reviewable in court under Chapter 7 of title 5 of the United States Code. A reviewing court can decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. Section 706(1) authorizes the court to compel action that it determines has been unlawfully withheld.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 7. Please explain the responsibility that the competent authorities and other related authorities take to the right holders when they examine goods which infringe intellectual property rights and nevertheless release them into free circulation with regard to the suspension based on the Application or the Ex Officio Action stipulated in Article 58 of the TRIPS Agreement.
See the response to question 6. Also, Customs can demand redelivery of goods violating trademarks or copyrights if appropriate, under 19 C.F.R. §§ 133.24 and 133.46 respectively.
18/12/1998

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