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).
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Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q4/USA/1 États-Unis d'Amérique Japon 8. Please explain the responsibility that the competent authorities and other related authorities take to the importers when they suspend the release into free circulation of goods which do not 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.
Decisions of the Customs Service are reviewable in court under Chapter 7 of title 5 of the United States Code. The 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(2) authorized the court to hold unlawful and set aside agency action, findings, and conclusions found to be "(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right", "(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court".
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 9. Is the right holder informed of identities of the importers and consignors when the competent authorities "suspend" the goods which infringe on intellectual property rights or which are suspected to infringe intellectual property rights, as well as the case where the right holder is informed of identities of the importers and consignors stipulated in Article 57 of the TRIPS Agreement?
Currently, under 19 C.F.R. § 133.23a(c), notice is given to the trademark owner of the quantity of articles seized. The amendments to the regulations now being reviewed and pending approval, will provide for the disclosure of additional information. Under 19 C.F.R. § 133.43, notice is given to copyright owners that delivery of suspected infringing copies or phonorecords is being withheld a sample of the imported article is provided.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 10. Please explain the measures to protect confidential information in the course of the inspection stipulated in Article 57 of the TRIPS Agreement. And please indicate provisions of laws and ordinances which prescribe such measures.
Customs regulations governing the treatment of confidential information are contained in Part 103 of title 19 of the Code of Federal Regulations. Customs employees can be subject to disciplinary action within the Service or held liable for the improper disclosure of confidential information under 18 U.S.C. § 1905 (the Trade Secrets Act), 40 U.S.C. § 759 (the Computer Security Act of 1987, and 5 U.S.C. § 552a (the Privacy Act).
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 11. 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.
Procedures governing seizures and detentions are described in 19 C.F.R. §§ 133.21 through 133.24 for trademarks and 19 C.F.R. §§ 133.42 through 133.47 for copyrights. The final provisions regarding forfeiture and assessment of liquidated damages in connection with both trademarks and copyrights are contained in 19 C.F.R. §§ 133.51 through 133.53.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 12. Please explain the procedures to appeal against any decisions ordered by the competent authorities based on Articles 51 and 55 of the TRIPS Agreement.
Decisions made by field offices are subject to review by Customs' headquarters. Decisions of the Customs' headquarters are reviewable in the courts pursuant to 5 U.S.C. § 701 et seq.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 13. 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.
Section 113.11 of title 19 of the Code of Federal Regulations authorizes port directors to determine the appropriate type of bond and the amount. The amount of the bond is based upon consideration of factors set out in 19 C.F.R. § 133.13.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 14. 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.
The importer pays the cost of detention in accordance with 19 C.F.R. §§ 24.12 and 24.17(a)(9).
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 15. 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.
Counterfeit trademarked goods may not be reexported. The Anti-counterfeiting Consumer Protection Act of 1996 amended 17 U.S.C. 603(c) to prevent re-export of copyright-infringing goods.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 16. Please explain kinds and contents of documents which shall be provided by the applicant to lodge the Application.
The requirements will be set out in amendments to previously cited regulations. These amendments are currently under review and pending approval.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 17. Please explain what materials the US regard as "adequate evidence to satisfy the competent authorities that there is prima facie an infringement of the right holder's intellectual property rights" stipulated in Article 52 of the TRIPS Agreement. For example, as for patent rights, is a written opinion statement prepared by a lawyer regarded as "adequate evidence", and can the right holders request the ITC to commence a procedure to identify whether or not the goods infringe the right based on the statement?
See the response to question 16.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 18. Please explain whether the discovery procedure under the Federal Rules of Civil Procedure may cost the party concerned a lot of burden or time, because the scope of disclosure is extensive and the procedure usually lasts long. Please explain whether the discovery is consistent with Article 41.2 of the TRIPS Agreement, which requires that the procedures concerning the enforcement of intellectual property rights not be unnecessarily complicated or costly.
The discovery procedure governed by the Federal Rules of Civil Procedure (the Rules) is fully consistent with the obligations of Article 41.2. The discovery procedure enables each party to an action for enforcement of intellectual property rights to obtain information related to any claim or defence in that action. The Rules authorize the judge in any enforcement action to limit discovery requests which are unreasonably cumulative or duplicative; if the information is obtainable from some other source that is more convenient, less burdensome, or less expensive; if the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or if the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. See Rule 26. The judge in any enforcement action also is required to issue a scheduling order that, among other things, limits the time for completion of discovery. See Rule 16(b).
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 19. Section 337 of the Tariff Act of 1930 provides that Administrative Law Judge and USITC determine a target date. Please explain how many target dates have been determined since 1 January 1996. In such cases, please explain whether the target dates are consistent with Article 41.2 of the TRIPS Agreement, which requires that the procedures concerning the enforcement of intellectual property rights not entail unreasonable time-limits or unwarranted delays.
Section 337 is fully consistent with Article 41.2. By statute, Section 337 investigations must be completed at the earliest practicable time. Target dates for the completion of the investigation are set by the Administrative Law Judge early in the investigation. These requirements parallel the procedures set out in recently revised Rule 16 of the Federal Rules of Civil Procedure providing district courts with various mechanisms for expediting litigation. These target dates typically call for completion of the investigation in one year, although complex investigations may take about eighteen months to complete. The Commission has the flexibility to ensure that the target date set is not unreasonable and does not allow unwarranted delays.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon [Follow-up question from Japan] With respect to the reply to question 19 from Japan, please provide statistical information related to Section 337 of the Tariff Act of 1930 for each of the years 1995 to 1997, including the number of cases filed, the number of cases whose investigations were initiated, the number of cases whose target dates were set and the targeted duration for the completion of the investigation.
In 1995, 11 section 337 petitions were filed, 11 investigations were initiated, nine were given target dates by the US International Trade Commission (the other cases were subject to the old rules). Eight of the nine were to be completed within 12 months and one within 12 1/2 months. In 1996, 13 section 337 petitions were filed, 12 investigations were initiated, and all 12 were assigned target completion dates. The target completion dates varied from ten 1/2 months to 21 months. As of 1 December 1997, 11 section 337 petitions have been filed in 1997, 11 investigations were initiated, and all but three have been assigned target dates and target dates will be assigned those three shortly. Target completion dates ranged from 12 months to 15 months.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 20. According to Section 337 of the Tariff Act of 1930 as recently amended, those accused are about to file counterclaim in the USITC proceedings, though those counterclaims are transferred to a federal court in actual cases. In this context, please explain whether the recent amendment of Section 337 of the Tariff Act of 1930 has solved the prior problem in which those accused were only able to file counterclaim in a federal court.
The amendments to Section 337 resolved the problem that the panel identified in its report. Namely, a respondent in a section 337 action may file with the USITC any counterclaim that may be filed with a federal court. If the claim is of the form of a defence to the alleged violation of section 337, the USITC will consider the matter. If the party raising the counterclaim seeks a remedy such as damages, the amendments now make that remedy available. Moreover, the amendments ensure that the party raising the counterclaim is not prejudiced by any delay or payment of fees.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon 21. According to recent amendments of Section 337 of the Tariff Act of 1930, producers or importers of challenged products of a foreign origin may not necessarily have to defend their products both before the USITC and a federal court in a sense that both the USITC and a federal court procedures never proceed at the same time. Please explain whether the recent amendment of Section 337 of the Tariff Act of 1930 has solved the prior problem in which producers or importers of challenged products of foreign origin were forced to defend in double fora.
The amendments to section 337 provided the means to prevent infringement proceedings being brought against imported goods in two forums at the same time. A district court hearing an infringement case is required to stay its proceedings, at the request of a respondent in a section 337 proceeding, in respect of any claim that involves the same issues as those pending before the ITC. Such issues would include questions of patent validity, infringement, and any defences that might be raised in both proceedings. The district court may use its discretionary authority to stay any other claims in the case.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Japon [Follow-up question from Japan] With respect to the replies to questions 3, 16 and 17 from Japan, the United States of America states that amendments of laws and/or regulations are currently under review and pending approval. Please explain: (a) outline of present laws and/or regulations, including whether there are not any provisions or other treatments are stipulated; (b) outline of the amendments being prepared; (c) expected timing of approval.
(a) The outline of the present regulations is found at the beginning of 19 C.F.R. § 133. (b) The amendments being prepared will expand and clarify the information that may be disclosed to interested parties, clarify Customs position regarding materially and physically different grey market goods and make the procedures that apply to trademarks and copyrights more uniform. (c) The amendments have been prepared for final publication and are being processed as expeditiously as possible.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Suisse Preliminary remark: the Swiss authorities are aware that there is a two-tier system in the United States. The following questions are mainly limited to the federal law, unless otherwise indicated. When a feature of state law is of interest and a question is posed, we do not expect a description of all the state laws but, whenever possible, examples. 1. Please explain in detail the measures which have been taken in order to comply with the GATT panel decision of November 1989 on Section 337 of the US Tariff Act of 1930.
The United States amended section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, as part of US implementation of the Uruguay Round results. As stated in the "Statement of Administrative Action" accompanying the Uruguay Round Agreements Act, the amendments to § 337 bring US procedures into conformity with national treatment obligations under GATT 1994, while providing for effective enforcement of intellectual property rights at the border. The TRIPS Agreement, which was negotiated after the GATT panel report finding that certain aspects of section 337 were inconsistent with Article III of GATT 1947, recognizes that it may be necessary to treat domestic and imported products differently to enforce intellectual property rights effectively in respect of imported goods. The procedures applied under section 337 comply fully with Article 49 of TRIPS in that they "conform to principles equivalent in substance to those set forth" in Section 2 of the TRIPS Agreement. For example, each element of Articles 41 and 42 of the TRIPS Agreement are met in the context of a section 337 proceeding. The 1994 amendments to section 337 made the following changes to USITC procedures to implement the panel's recommendations. - Eliminated the requirement that the USITC issue a final determination within a fixed period of time. Instead, the amendment provides that the ITC must complete its investigation "at the earliest practicable time". To promote rapid adjudication, the USITC must, within 45 days of initiating an investigation, establish a "target date" for its completion. See 19 U.S.C. § 1337(b)(1). These requirements parallel the procedures set out in recently revised Rule 16 of the Federal Rules of Civil Procedure providing district courts with various mechanisms for expediting litigation. They are also consistent with district court efforts to avoid delay, such as by establishing a schedule for the completion of various stages of litigation. - Provide a means to prevent infringement proceedings being brought against imported goods in two fora simultaneously. A district court hearing an infringement case is required to stay its proceedings, at the request of a respondent in a section 337 proceeding, in respect of any claim involving the same issues as those pending before the ITC. Such issues would include questions of patent validity, infringement, and any defences that might be raised in both proceedings. The district court may, in its discretion, stay any other claims in the case. - Resolved the problem regarding counterclaims that the GATT panel identified in its report. A respondent in a section 337 action may file with the USITC any counterclaim that may be filed with a federal court. If the claim is of the form of a defence to the alleged violation of section 337, the USITC will consider the matter. If the party raising the counterclaim seeks a remedy such as damages, the amendments now make that remedy available. Moreover, the amendments ensure that the party raising the counterclaim is not prejudiced by any delay or payment of fees. See 19 U.S.C. § 1337(c).
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Suisse 2. Section 337 determinations are subject to judicial review, on appeal, by the Court of Appeals for the Federal Circuit. Please indicate whether such determination may be subject to further judicial review before the US Supreme Court.
Decisions of the CAFC regarding § 337 can be appealed to the US Supreme Court.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Suisse Question 1 of the Checklist of Issues on Enforcement 3. According to the US response to question 1 of the Checklist of Issues on Enforcement,18 federal district courts, in addition to state courts, may have "jurisdiction over claims of trademark infringement, misappropriation of trade secrets, or unfair competition based on state laws...depending on the nature of the claims and the parties involved". Please specify, in greater detail, the nature of claims and types of parties for which federal district courts may also have jurisdiction over claims based on state laws and set forth the relevant statutory provisions or other relevant legal authority.
A claim based on state law may be heard in a federal district court under the following statutory provisions: 28 U.S.C. § 1332, which provides for federal court jurisdiction in cases where the citizenship of the parties is diverse (i.e. they are citizens of different states or one is a foreign national) and the amount of the claim exceeds US$50 000; or 28 U.S.C. § 1367, which provides federal jurisdiction to hear state law claims that are related to and part of the same case or controversy as a separate federal claim. In addition, under 28 U.S.C. § 1441, a case bought in state court that satisfies federal jurisdictional requirements may in most cases be removed to federal court at the request of a party.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Suisse 4. Please state whether US federal district court jurisdiction over infringement of intellectual property rights extends to industrial designs and geographical indications and specify the relevant statutory provisions.
Federal districts courts have original jurisdiction over infringement actions involving industrial designs under 35 U.S.C. § 281 and 28 U.S.C. § 1338 and involving geographical indications registered as certification marks under 15 U.S.C. § 1114 and 28 U.S.C. § 1338.
18/12/1998

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