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.

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Page 675 de 677   |   Nombre de documents : 13533

Cote du document Membre notifiant Membre soulevant la question Question Réponse Date de distribution du document  
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 44. Article 53.2 provides that the owner, importer, or consignee of goods involving industrial designs, patents, layout designs or undisclosed information that have been suspended by customs authorities should be able, in certain circumstances, to have such goods released on payment of security sufficient to protect the right holder from infringement. Please identify what forms of intellectual property, if any, are subject to provisions of Article 53.2 and cite to the relevant provisions of law or regulations.
The term "intellectual property right", to which reference is made above, means the rights in respect of a trademark conferred by the Trade Marks Act, 1993, the copyright in any work in terms of the Copyright Act, 1978, or an exclusive right of use in relation to goods conferred by a notice published in terms of Section 15 of the Merchandise Marks Act. This meaning of the term "intellectual property" is narrower than the normal meaning given to the term. "Intellectual property" normally embraces in addition patents and designs. For the purposes of the Act, however, these two forms of intellectual property are not in contention.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 45. Article 54 requires that the importer and the applicant be notified promptly of the suspension or release of goods. Please specify the period within which the competent authority to issue a notice that the release of goods has been suspended.
There are no legislative time-limits other than that written notice must be given by an inspector to the person from whom counterfeit goods are seized, informing such person of the action taken by the inspector and of the address of the counterfeit goods depot where the goods are kept Section 7(1)(d) of the Counterfeit Goods Act 1997 (Act No. 37 of 1997) provides. In terms of South African common law notice must be given within a reasonable period of time and it is within the discretion of a court before which a matter is heard, upon consideration of the facts and circumstances of each case to determine whether or not the compliance with such time-periods is reasonable or not. "7(1) An inspector who, in exercising his or her powers in terms of Section 4(1) has seized any suspect counterfeit goods, must: (d) by written notice inform the following persons of the action taken by the inspector in terms of Section 4(1) and of the address of the counterfeit goods depot where the seized goods are kept: (i) The person whom those goods were seized; and (ii) also: (aa) the complainant, where the inspector exercised his or her powers in terms of Section 4(1) pursuant to a complaint laid in terms of Section 3(1); or (bb) any person who, in relation to those goods, qualifies in terms of Section 3(1) to be a complainant, but who had not yet so laid a complaint at the time when the inspector exercised those powers on his or her own initiative as contemplated in Section 3(4)."
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 46. Article 55 makes it clear that the right holder applying for suspension of infringing goods must initiate a proceeding on the merits in an appropriate forum within a reasonable period of time or the goods will be released. Please identify the fora in which an applicant/party may initiate proceedings on the merits that will allow customs authorities to hold the goods beyond ten working days.
The Courts which would have jurisdiction would be the High Court and the Magistrates Courts. The value of the goods forming the subject-matter of any action before such Court would generally determine which Court would have jurisdiction to hear the matter.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 47. Article 55 provides that a review 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 and cite the applicable law or regulations.
Where Court action is not taken within the prescribed 3 or 10-day period, counterfeit goods which have been seized by an inspector must be released. Where infringement proceedings have been instituted by an applicant, and the applicants claim has been dismissed by the Court, the Court, on the application of the erstwhile respondent or any other interested person claiming to be entitled to the goods, may order that such goods be released, respectively, to the erstwhile respondent or such interested person who has proved his or her entitlement thereto. The normal process of the Courts may be utilized to review or modify an order. Section 4 of the Counterfeit Goods Act, 1997 refers in this regard.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 48. 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 identify the authorities that can order the applicant to pay the importer, consignee or owner compensation for injury caused by wrongful detention or through the detention of goods released pursuant to Article 55 and cite to the applicable law or regulations.
Section 17(1) of the Counterfeit Goods Act provides: "Any person suffering damage or loss caused by the wrongful seizure, removal or detention of goods alleged to be counterfeit goods, or by any action contemplated in section 7(1)(a), (b) or (c) or (2) wrongfully taken by an inspector with reliance on that section read with section 4(a), or caused during or pursuant to the seizure, removal or detention of such goods in terms of this Act, will be entitled to claim compensation for that damage or loss which claim, subject to subsection (2), will be against the complainant and not against the State, the inspector or the person in charge of the counterfeit goods depot where those goods are or were detained."
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 49. Article 57 requires that the competent authorities be able to authorize the right holder to inspect the detained goods in order to substantiate the claims. Please explain how right holders are provided an opportunity to inspect suspect goods that have been detained by customs authorities.
Section 8 of the Counterfeit Goods Act provides: "(1) Goods that have been seized in terms of Section 4(1) must be stored and kept in safe custody at a counterfeit goods depot until the person in charge of the depot: (a) is ordered by a competent Court in terms of this Act to return, release, destroy or otherwise dispose of those goods as specified in the order; or (b) is directed by the inspector concerned, in the circumstances provided for in subsections (1)(b) or (2)(a),(b) or (c) of Section 9, to release those goods to the suspect. "(2) Goods seized in terms of Section 4(1) will be available for inspection by the complainant, or as the case may be prospective complainant (if any) the suspect and any other interested person at the counterfeit goods depot on any working day during normal office hours. "(3) The person in charge of the counterfeit goods depot, on the request of the complainant or prospective complainant (as the case may be) or the suspect, must make the relevant seized goods available for testing or analysis by or on behalf of any such complainant or the suspect if the person so in charge, having taken into account the nature of such seized goods, the nature of the tests or analyses to be conducted, and the competence and suitability of the person by whom the tests or analyses are to be conducted, is satisfied that a request in that regard is reasonable. "(4) The person in charge of a counterfeit goods depot who is not willing to allow seized goods under his or her custody to be made available to the suspect for testing or analysis by any person or by a particular person, must forthwith refer the matter to the complainant or prospective complainant (as the case may be) who must either confirm or reverse that decision within 48 hours. "(5)(a) Where any such complainant has confirmed the decision not to allow the seized goods to be made available to the suspect for testing or analysis, that decision must be conveyed in writing to the suspect who may apply to the Court for an order rescinding the decision and allowing those goods to be made so available (b) The Court will grant the application if it finds the decision to be unreasonable in the circumstances." Seized goods to be released if criminal investigation or criminal or civil proceedings not contemplated against suspect.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 50. 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 South Africa 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. Please cite to the law or regulations providing such authority.
Section 10(1)(d) of the Counterfeit Goods Act provides: "… that the accused or the defendant or respondent (as the case may be) discloses the source from which those goods, if found to be counterfeit goods, have been obtained, as well as the identity of the persons involved or ostensibly involved in the importation, exportation, manufacture, production or making and distribution of the counterfeit goods and in the channels of distribution of those goods."
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 51. Article 58 specifies procedures to be followed where the competent authorities can act ex officio. Please explain whether the competent authorities in South Africa are empowered to act ex officio and, if so, please identify the intellectual property areas subject to ex officio action.
Section 3(4) of the Counterfeit Goods Act provides: "The preceding provisions of this section do not preclude an inspector from taking any appropriate steps in terms of Section 4(1) on his or her own initiative in relation to any act or conduct believed or suspected to be an act of dealing in counterfeit goods, provided the requirements of that section are met." The affected areas of intellectual property are trademarks and copyright.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 52. 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 South Africa 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.
Section 20(1) of the Counterfeit Goods Act provides: "Subject to Section 10, the Court having convicted a person of an offence contemplated in Section 2(2) may declare the counterfeit goods in question to be forfeited to the State or order that those goods and their packaging, and where applicable any tools that were used by or on behalf of the convicted person for the manufacturing, production or making of those or any other counterfeit goods or for the unlawful application to goods of the subject matter of any intellectual property right, be destroyed."
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 53. Please identify: (a) the competent authority that decides the disposition of the goods, i.e., whether the goods will be destroyed or disposed of outside the stream of commerce; and (b) the competent authority that carries out the destruction or disposal of the goods.
(a) Section 20(1) of the Counterfeit Goods Act provides for the Court to order the destruction or disposal of the goods outside the stream of commerce. (b) The destruction or disposal of the goods is usually left to the discretion of the successful applicant.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 54. 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 South Africa.
The South African courts do recognize the de minimis principle. The legislature has left it to the Courts to determine what constitutes a small quantity which is negligible.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 55. 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. Please describe the provisions in the law of South Africa that fulfill that obligation and provide legal citations.
The lower/Magistrate Courts and the High Court have jurisdiction in respect of criminal acts involving infringement of intellectual property rights. Criminal procedures and penalties are available in the case of copyright infringement. Section 27 of the Copyright Act reads as follows: "27(1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright: (a) makes for sale or hire; (b) sells or lets for hire or by way of trade offers or exposes for sale or hire; (c) by way of trade exhibits in public; (d) imports into the Republic otherwise than for his private or domestic use; (e) distributes for purposes of trade; or (f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected, articles which he knows to be infringed copies of the work, shall be guilty of an offence. "(2) Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence. "(3) Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright, shall be guilty of an offence. "(4) Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such broadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence. "(5) Any person who causes programme-carrying signals to be distributed by a distributor for whom they were not intended knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright, shall be guilty of an offence. "(6) A person convicted of an offence under this section shall be liable: (a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates; (b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates." Any inspector, i.e. any person so appointed in terms of the Counterfeit Goods Act; a police official; Commissioner of Customs and Excise may initiate criminal proceedings. Any of these officers may act on their own initiative as well as in response to a complaint from a person entitled to lay such a complaint. However, where an officer has acted of his own initiative, he must procure a complainant otherwise the goods must be released. In terms of the Counterfeit Goods Act, private persons do have standing to initiate criminal proceedings. The Act grants such right to any person having an interest in the protected goods, either as an owner/licensee of the intellectual property rights; importer; exporter/distributor and any authorized agent or attorney of such person. Conviction on a charge of criminal copyright infringement can lead to the imposition of both imprisonment and monetary fines. In the case of a first offence, the Copyright Act imposes a maximum prison sentence of three years or a penalty of R 5,000.00, or both for each infringing article; in the case of a subsequent conviction these maxima are increased to five years imprisonment and R 10,000.00 per infringing article.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 56. 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 explain the provisions in the law of South Africa that provide for such remedies, describe the circumstances in which those remedies would be imposed and provide legal citations.
Please see the reply to question 55 above.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 57. 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 in the law of South Africa that provide for such procedures and remedies and provide legal citations.
Please see the reply to question 55 above.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 58. 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 South Africa comply with that obligation.
Please see the reply to question 55 above.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
Statistical data on the aspects requested is not available in collated format.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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 your criminal system operates effectively to deter copyright piracy and trademark counterfeiting.
Statistical data on the aspects requested is not available in collated format.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud États-Unis d'Amérique 3. With respect to each form of intellectual property covered in Part II of the TRIPS Agreement, please describe any provision in South Africa's laws authorizing any limitation on a right holder's ability to enforce its rights against unauthorized imports.
Section 15c of the Medicines and Related Substances Control Amendment Act empowers the Minister of Health to authorize the parallel importation of patented medicines under certain circumstances. This is an enabling provision and it must be noted that a holder's right to enforce its rights against unauthorized imports of a patented product will only be affected in those instances where this provision is invoked.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 1. Please indicate the "competent authorities" stipulated in Article 51 of the TRIPS Agreement.
The new Counterfeit Goods Act No. 37 of 1997, which came into force on 1 January 1998, is special legislation to deal with counterfeit goods, bearing counterfeit trademarks or copyright works or marks prohibited under the Merchandise Marks Act, 1941. In terms of the Counterfeit Goods Act an inspectorate is created, inspectors being: - Police officials holding the rank of sergeant or a higher rank; - the Commissioner of Customs and Excise and designated officials in terms of the Customs and Excise Act, 1964; - inspectors appointed by the Minister of Trade and Industry (Sections 1(1) and 22). Inspectors will generally exercise their powers on the basis of a warrant issued by a judge of the High Court or by a magistrate, i.e. a judicial authority (Sections 4 and 6). Section 15 of the Counterfeit Goods Act deals specifically with the detention of counterfeit goods which are being imported into South Africa. The competent authority who must consider and deal with applications in terms of this section, is the Commissioner for Customs and Excise.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
The proceedings are judicial proceedings, being either criminal or civil proceedings (Section 9).
30/04/1999

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