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/ZAF/1 Afrique du Sud Japon 3. Are there any ways other than the application stipulated in Articles 51 and 52 of the TRIPS Agreement (hereafter referred to as "the Application") which enable a right holder to request the competent authorities to suspend the release of the goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights?
(a) Section 28 of the Copyright Act No. 98 of 1978 provides a mechanism whereby a copyright owner may request the Commissioner for Customs and Excise to treat certain specified goods (being infringing goods) as prohibited goods. (b) Section 113(1)(g) of the Customs and Excise Act No. 91 of 1964 prohibits the importation of reproductions of copyright works which are unlawful under copyright laws. Sections 23(2) and 27(1) of the Copyright Act, 1978 are relevant in this regard.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 4. Please explain what term your country regards as "a reasonable period within which the competent authorities shall inform the applicant whether or not they have accepted the Application" stipulated in Article 52 of the TRIPS Agreement.
The Counterfeit Goods Act does not stipulate a time-period within which an inspector must inform an applicant that the complaint has been accepted and will be acted upon. Section 15(3) provides that the Commissioner of Customs and Excise must consider and deal with an application "without delay".
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 5. Please explain the term during which the Application is effective.
In terms of Section 15(1) the applicant has to specify a period during which detention of the relevant imported goods is to take place. This period may not exceed the period for which the intellectual property right relied upon subsists.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 6. Please explain whether a right holder is obliged to pay any fees to lodge the Application.
No payment of fees is stipulated in the Act, and regulations to deal with practical implementation have not yet been promulgated.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 7. 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.
The procedure described below relates to the provisions of the Counterfeit Goods Act. Responsibility for the border enforcement of intellectual property rights is borne by the Commissioner of Customs and Excise. An applicant needs to supply the Commissioner of Customs and Excise with either a specimen of the protected goods bearing the intellectual property rights sought to be protected, or sufficient information from which the essential physical and other distinctive features may be ascertained; sufficient information and particulars as to the subsistence and extent of the intellectual property right as well as the title to the right in question. However, the Commissioner may only confiscate such goods for a period not extending beyond the last day of the period for which the intellectual property right in question subsists. The Commissioner is not obliged to confiscate offending goods unless he is furnished with the necessary security in a manner and amount he may require to indemnify the customs authorities and their members against any liability that may be incurred pursuant to the seizure and detention of goods. No specific indemnification is conferred upon the importer and owner of goods which have been suspended. However, where such suspension takes place at the instigation of a complainant any person suffering injury or prejudice because of the suspension of goods alleged to be counterfeit goods, or any action taken by an inspector in effecting this seizure is entitled to claim compensation from the complainant. Compensation may only be claimed from the Commissioner if he or his officials have been grossly negligent in the seizure of the goods or in their detention or storage, or where such person acted in bad faith in performing his duties. The complainant is entitled to a copy of any statement taken down or any other document for evidence procured by a customs inspector in the exercise of his powers of search, seizure and detention. A complainant or suspect is entitled to inspect any goods seized by the Commissioner.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 8. 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.
Seized goods have to be returned to a suspect if criminal charges are not laid by the complainant or civil proceedings are not instituted by a complainant within three days of being notified of such seizure. If the criminal charge is laid, the goods will be returned to the suspect if the state does not inform the suspect by written notice of its intention to institute a criminal prosecution against him for having committed an offence of dealing in counterfeit goods, within ten days of notice of seizure of goods from the inspector.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 9. 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.
No specific indemnification provisions exist. However, if a defendant (including a public authority or official) is wrongfully sued or joined in civil proceedings in the Courts, it will be able to set the proceedings aside and will be awarded its legal costs (on the punitive scale if appropriate) and any damages which it might have suffered as a result. Furthermore, in certain instances, the Court may require a plaintiff to furnish security for costs and/or damages.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 10. 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.
Please see the reply to question 9 above.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 11. 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.
Please see the reply to question 9 above.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 12. 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?
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 Japon 13. 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.
When during a search by an inspector a person claims that any goods, documents, article or item, present contains privileged information and refuses the inspection or removal thereof, the inspector must act in a circumscribed manner. If he is of the opinion that the goods, document, articles or item may be relevant to, and necessary for, the investigation of any complaint or any alleged or suspected act of dealing in counterfeit goods, he must request the Registrar or Deputy Registrar of the High Court having jurisdiction to seize and remove the contentious material for safe custody until the Court has made a ruling on the question of whether or not the information in question is privileged (Section 6(8) of the Counterfeit Goods Act).
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
Articles 51 and 55 of the TRIPS Agreement require Members to provide procedures for the suspension by the customs authorities of the release of goods into circulation, where a right holder has valid grounds to suspect that the importation of counterfeit trademark or pirated copyright goods is involved. In South Africa, the Counterfeit Goods Act No. 37 of 1997 provides such procedures. In terms of Section 15 of the Counterfeit Goods Act, the owner of an intellectual property right (defined in Section 1 to include trademark rights and copyright) may apply to the Commissioner (for Customs and Excise) to seize and detain goods which are counterfeit goods featuring the subject matter of that intellectual property right and which are being imported into the Republic (of South Africa). The applicant may furnish the Commissioner with a specimen of the goods that are protected, and sufficient information regarding the subsistence of the intellectual property right and his/her title to that right. The Commissioner must deal with the application without delay, and must grant the application if satisfied on reasonable grounds that the intellectual property right prima facie subsists, that the applicant prima facie is the owner, and that the goods are prima facie protected goods. The Merchandise Marks Act No. 17 of 1941 (as recently amended) also provides certain procedures which are relevant. In Section 1 of the Merchandise Marks Act No. 17 of 1941, the concept "inspector" is defined to include the Commissioner of Customs and Excise and certain of his officials. Inspectors are given the power, when they suspect that an offence in terms of that Act has been committed or is likely to be committed (e.g. a false trade description has been applied to goods; such goods will be sold or let or offered for sale or hire; imported goods will be sold or distributed, which bear the name of a South African manufacturer or trader but which were not produced in South Africa and which do not have an indication of origin), inter alia, to seize articles which have a bearing on the offence. The Customs and Excise Act No. 91 of 1941 also has relevant provisions. Section 113(1)(g) prohibits the importation of unlawful reproductions of copyright works.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
Decisions by the Commissioner in terms of Section 15 of the Counterfeit Goods Act will be administrative decisions subject to review in accordance with the principles of administrative law. Furthermore, Section 15(6) provides that, when any member of the customs authorities acts in terms of Section 15(4) to seize and detain the stipulated goods, he/she will be acting as if he/she is exercising the powers of an inspector subject to the provisions of the Counterfeit Goods Act. This includes the requirement that the powers of seizure and detention of goods must (except in certain circumstances) be exercised on the authority of a warrant issued in terms of Section 6 of the Counterfeit Goods Act, namely by any judge of the High Court or by a magistrate. This means that proceedings can be brought by the defending party for such a warrant to be set aside
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
In terms of Section 15(7) of the Counterfeit Goods Act, the owner of the intellectual property right may be required to furnish security to the Commissioner in the manner and the amount that the Commissioner may require to indemnify the customs authorities against any liability that may be incurred as a consequence of the seizure and detention, and to cover expenses incurred in effecting the seizure and detention.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
The Counterfeit Goods Act provides, in Section 8, that counterfeit goods seized by an inspector must be stored and kept in safe custody in a counterfeit goods depot. Section 23 provides that the Minister (of Trade and Industry) may by notice in the Gazette, designate any place to be a counterfeit goods depot, while Section 24 empowers the Minister to make regulations that may be necessary for the proper and effective control, management and administration of a counterfeit goods depot. No such notices or regulations have as yet been published. Where counterfeit goods are to be seized by the Commissioner of Customs and Excise upon entering the country in terms of Section 15 of the Counterfeit Goods Act, this will take place by the customs authorities in performing their functions under the Customs and Excise Act No. 91 of 1964. This later Act provides for the establishment of warehouses, and in Section 23 specifically provides that the Commissioner may allow the storage in such a warehouse of goods the importation or disposal of which is prohibited or restricted under any law. The Customs and Excise Act has extensive provisions dealing with management and administration of such warehouses and the goods stored therein.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud 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.
Section 10 of the Counterfeit Goods Act has a provision giving effect to the principle of Article 59 of the TRIPS Agreement in regard to re-exportation of counterfeit trademark goods. Section 10(2) places a prohibition, inter alia, on the exportation of imported goods in an unaltered state where the goods, inter alia, bear a trademark or a colourable imitation thereof so as to be calculated to be confused with or taken as being protected goods, unless a court, on goods cause shown, orders otherwise. The Courts have not yet given an interpretation of this section, to indicate what will be regarded as constituting good cause. Section 4 of the Merchandise Marks Act No. 17 of 1941 also has a provision giving effect to the principle regarding re-exportation of counterfeit trademark goods contained in Article 59 of the TRIPS Agreement. Section 14(15) provides that where imported goods, which are destined for exportation, were seized and held by a court to be the subject of a contravention under the Act (e.g. by reason of the application of a false trade description), the Court shall not allow the goods to be exported in an unaltered state, except if it thinks it fit to allow exportation after due regard to the circumstances regarding the offence. This provision was inserted into the Merchandise Marks Act by the Intellectual Property Laws Amendment Act No. 38 of 1997, and has not yet been interpreted by our courts.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 19. Please indicate names of laws and ordinances and their provisions in which the suspension of the release of goods which infringe intellectual property rights or which are suspected to infringe intellectual property rights is prescribed, as stipulated in Article 51 of the TRIPS Agreement.
The Counterfeit Goods Act No. 37 of 1997 (e.g. Section 15). The Customs and Excise Act No. 91 of 1964 (e.g. Section 23). The Merchandise Marks Act No. 17 of 1941 (e.g. Section 4).
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 20. Please indicate which intellectual property rights are protected based on the Application by a right holder.
The Counterfeit Goods Act relates to trademark rights, copyright, and rights conferred in terms of Section 15 of the Merchandise Marks Act, for example in regard to any mark, word, letter, etc. to be used in connection with any trade, business, profession, occupation or event or in connection with a trademark or trade description for goods. The Merchandise Marks Act relates to: - false trade description applied to goods themselves or to any covering, label or reel in or with which the goods are sold; - the sale or offering for sale or letting of goods to which a false trade description has been applied; - alterations (such as effacement) of trademarks; - rights conferred in terms of Section 15 of the Act, which rights may for example relate to a mark, word, letter or figure or combinations thereof to be used in connection with any trade, business, profession, occupation or event; - the sale or distribution of imported goods not produced in South Africa but bearing the name of a South African manufacturer or trader without an indication of origin, or bearing a trademark or trade description in an official language of South Africa without an indication of origin; - the unauthorized use of certain emblems, including the coat of arms of South Africa, the title, name, portrait or effigy of the President or Deputy President or a Minister, the reproduction of any monument or relic; - the purchase or sale of any container or closure therefore marked with the owner's name, or any goods contained in such container. The Customs and Excise Act No. 91 of 1964 prohibits (in Section 113(1)(g)) the importation of unlawful reproductions of copyright works.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 21. Please explain kinds and contents of documents which shall be provided by the applicant to lodge the Application.
The information to be supplied by the owner of the intellectual property rights in terms of the Counterfeit Goods Act for the seizure and detention of counterfeit goods being imported, is set out in section 15(2).
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 22. Please explain the remedies which the judicial authorities order regarding a copyright and other related rights, patents, industrial designs, trademarks and layout designs (topographies) of integrated circuits, including injunctions, damages, expenses, destruction or other disposal of infringing goods and materials/implements for their production.
In terms of the Patents Act, 1978 (as amended), the Trade Marks Act, 1993 (as amended), the Copyright Act, 1978 (as amended) and the Designs Act, 1993 (as amended), and the Rules governing procedure in the High Court and the Court of the Commissioner of Patents, various remedies may be ordered in proceedings instituted either by way of action or by way of application: injunctions (interdicts): these can be awarded on an interim basis on application or finally (by way of application or action); damages: all the Acts aforesaid make provision for the award of damages (the normal basis being the actual patrimonial loss suffered) or, in lieu of damages, the payment of a reasonable royalty which would have been payable by a licensee for the use of the intellectual property right concerned. The Copyright Act also contains provision for the award of punitive damages. These may only be recovered by way of action; attorneys' fees and costs: these are invariably awarded, in terms of the Rules governing procedure of the Courts, to the successful litigant on a scale prescribed by tariff. In certain cases, to express its displeasure at the manner in which a litigant has conducted itself, the Court may award punitive legal costs on a higher scale; the aforesaid Acts also make provision for delivery up of infringing material/goods; none of the Acts referred to above exclusively sets out the remedies which may be awarded. The Courts have inherent power to grant other or alternative relief, depending upon the circumstances of each matter.
30/04/1999

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