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/ZAF/1 Afrique du Sud Japon 23. Please explain whether the amount of damages which judicial authorities order the person who infringes intellectual property rights to pay the right holder is adequate compensation for the injury the right holder has suffered, and what criteria and the way for calculation to decide the amount for compensation.
The basis of the damages awarded is the patrimonial loss suffered by the right holder. In deciding the quantum of damages the Court takes into consideration delictual principles as set in South African jurisprudence. The right holder may also claim in lieu of damages, the payment of a reasonable royalty which would have been payable by a voluntary licensee.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 24. Please explain whether the amount of damages which judicial authorities order the person who infringes intellectual property rights to pay the right holder includes investigations expense and appropriate attorney's fees.
The Courts have inherent jurisdiction to grant an order as to costs which is separate from the amount of damages awarded; this would include the attorneys' fees as well as actual disbursements and expenses, such as investigative expenses. A bill of costs has to be taxed (assessed) by the Taxing Master unless the parties agree otherwise.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 25. Please describe to what extent the amount of damages have been estimated by courts since 1 January 1996. Please explain whether the amount of damages is adequate compensation for the injury the right holder has suffered, and how such civil procedures are consistent with Article 45 of the TRIPS Agreement.
As set out above in regard to question 23, the amount of damages awarded is based on the actual loss suffered by the right holder; the right holder has to prove the quantum of the loss suffered. Further, the amount of damages to be awarded is within the discretion of the Court taking into account the principles mentioned in question 23.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Japon 26. Please explain the kinds and amounts of penalties (imprisonment or fines) in criminal cases. Please also explain whether these penalties 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.
Section 19 of the Counterfeit Goods Act provides: "(1) Any person convicted of an offence referred to in Section 2(2), will be punishable: (a) in the case of a first conviction, with a fine, in respect of each article or item involved in the particular act of dealing in counterfeit goods to which the offence relates, that may not exceed R 5,000.00 per article or item, or with imprisonment for a period that may not exceed three years, or with both such a fine and such term of imprisonment; (b) in the case of a second or any subsequent conviction, with a fine, in respect of each such article or item, that may not exceed R 10,000.00 per article or item, or with imprisonment for a period that may not exceed five years, or with both such a fine and such term of imprisonment. "(2) Any person convicted of an offence referred to in Section 18, will be punishable with a fine or imprisonment for a period that may not exceed six months. "(3)(a) A court that has convicted a person of an offence contemplated in Section 2(2) must, when considering which penalty to impose, amongst others take into account any risk to human or animal life, health or safety or danger to property (whether movable or immovable) that may arise from the presence or use of the counterfeit goods in question. (b) Without detracting from the discretion that a court in criminal proceedings has with regard to sentencing, a court that has convicted any person of an offence referred to in Section 2(2) may take into account, in mitigation of sentence, any evidence to the effect that such person, fully, truthfully and to the best of his or her ability had disclosed to an inspector who acted against him or her in terms of Section 4(1) or to a member of the South African Police Service who investigated that offence, all information and particulars available to that person in relation to any one or more or all of the following matters (whichever may have been applicable in the circumstances): (i) The source from which the counterfeit goods involved in the commission of the offence, were obtained; (ii) the identity of the persons involved in the importation, exportation, manufacture, production or making of those counterfeit goods; (iii) the identity and if reasonably demanded, the addresses or whereabouts of the persons involved in the distribution of those goods; (iv) the channels for the distribution of those goods. "(4)(a) The Minister may from time to time by notice in the Gazette increase the amounts of the fines mentioned in paragraphs (a) and (b) of subsection (1). (b) That notice must be laid on the table in the National Assembly, for its consideration and approval, within 14 days after the date on which it is published in the Gazette if the National Assembly is then in session or if it is not then in session within 14 days of the commencement of its next session."
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Suisse 1. Please explain whether international treaties which contain detailed provisions addressed to the (judicial) authorities and not to the State itself are considered as self-executing in your system? If not, when there is a divergence between the intellectual property legislation/practices and the international agreement in your country, does the latter automatically prevail? If not, please explain the means allowing your country to fulfil the international obligations? Please cite the relevant texts or jurisprudence.
Section 231 of the Constitution of the Republic of South Africa, provides: "(1) The negotiating and signing of all international agreements is the responsibility of the national executive. "(2) An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). "(3) An international agreement of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession, entered into by the national executive, binds the Republic without approval by the National Assembly and the National Council of Provinces, but must be tabled in the Assembly and the Council within a reasonable time. "(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. "(5) The Republic is bound by international agreements which were binding on the Republic when this Constitution took effect."
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Suisse 2. Article 55 of the TRIPS Agreement provides that “... in appropriate cases, this time limit [of ten days] may be extended by another ten working days”. Is such time extension foreseen in your laws? If yes, please cite the relevant provisions. If not, please explain how an applicant can avail himself of this possibility as provided by the TRIPS Agreement?
Currently no provision exists which addresses this issue.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne 1. In terms of Article 41 of the TRIPS Agreement, Members are obliged to ensure: (a) that enforcement procedures are available under their laws so as to permit effective action against any act of infringement of intellectual property rights; and (b) that such procedures include expeditious remedies; but provided (c) that such procedures provide safeguards against abuse. Thus, in relation to (c) in particular, safeguards are built into the procedural obligations specified in the TRIPS Agreement. For example, Article 41.4 provides that parties to proceedings shall have an opportunity for review by a judicial authority of at least the legal aspects of initial judicial decisions on the merits of a case. It is the understanding of the European Communities and their Member States that an interlocutory injunction (or, as it is known in South African law, a temporary interdict) ordered by the High Court is neither reviewable nor appealable. - Is our understanding of the current legal position in South Africa correct? Please explain. - If so, and in the absence then of the opportunity of a review or an appeal, what safeguards are built into the procedures available against the abuse by an applicant of proceedings for a temporary interdict?
Article 41 of the TRIPS Agreement requires, in Article 41.4, that there shall be an opportunity for review, inter alia, in respect of at least the legal aspects of initial judicial decisions on the merits of a case. In reply to the specific question as formulated, it is confirmed that the current legal position in South Africa is that an interlocutory injunction (temporary interdict) is not subject to review nor to appeal. It is submitted that this position is not in conflict with Article 41.4, inasmuch as the decision in regard to an interlocutory injunction is not a decision on the merits of a case. An interlocutory injunction is based on a balance of convenience, and the merits of the case are specifically not decided. To succeed with a temporary interdict, the claimant merely has to show prima facie, that there is a right which is or is about to be infringed, and that the balance of convenience favours the granting of a temporary interdict pending the finalization of the main proceedings. Furthermore, an interlocutory injunction is exactly that, namely a temporary order pending further court action; if such further court action does not follow within a reasonable period, the interlocutory injunction can be discharged. The order normally specifies a return date by which cause must be shown as to why the temporary interdict should not be made permanent, thus creating an opportunity for the respondent to state his case. The system is safeguarded against abuse in that the Court requires to be satisfied that the balance of convenience is in favour of the granting of such an interdict, and in considering this aspect The Court will consider, inter alia, the status and financial position of both parties, and will make the decision on the basis of the least measure of interference with the activities of a party.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne 2. It is the understanding of the European Communities and their Member States that a number of decisions by the Registrar of Trade Marks are currently outstanding for more than a year since they were argued before the Registrar. How does this comply with Article 41.3 of the TRIPS Agreement?
There is, at the present time, a small backlog of decisions by the Registrar of Trade Marks, namely seven outstanding, only one of which has been outstanding for a substantial period of time. This is due to a shortage of staff, and an unexpected escalation in the number of trademark cases filed, giving rise to a considerable increase in the number of trademark hearings before the Registrar of Trade Marks. However, it should be borne in mind that the Trade Marks Act provides (e.g. in Sections 24(1), 26 and 27) that the applicant has an option to elect whether to bring the proceedings before the Registrar, or before the Court. This means that, in many cases, the delay currently experienced in regard to matters being heard by the Registrar, can in fact be avoided by the applicant by bringing the proceedings before the Court (i.e. the High Court). In terms of Section 59 of the Trade Marks Act, where proceedings in terms of certain specified sections are pending before the Registrar, the Registrar may in his discretion refer the proceedings to the Court, he must refer to the proceedings to the Court on written application of all the parties concerned. This provision creates a mechanism whereby parties who require expeditious decisions could approach the High Court rather than the Registrar.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne 3. Article 45 of the TRIPS Agreement provides that judicial authorities have the authority to order the infringer to pay the right holder’s expenses. By the same token, but in opposite circumstances, Article 48 of the TRIPS Agreement provides that the judicial authorities shall have the authority to order the applicant to pay the defendant’s expenses. In both cases these expenses may include "appropriate attorney’s fees". Could the Government of South Africa please clarify whether "expenses" would comprise the actual expenses of the victorious party (such as counsel’s and expert’s fees, travel, accommodation and the like)? Please explain.
Courts in South Africa have an inherent jurisdiction to grant an order as to costs in favour of a successful litigant, and such costs would normally include attorneys' fees and disbursements or expenses. The expenses, payment of which may be ordered by the Court, would be taxed expenses, i.e. expenses permitted in terms of the tariff applicable in the High Court. The sum so ordered to be paid will be based on what is allowed by the relevant High Court tariff; this may not include all actual expenses, but rather those which are reasonable and are permitted in the circumstances. Generally speaking, experts' fees will be recovered; however, travel and accommodation expenses will generally not.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne 4. We are given to understand that, in an action for the infringement of a South African intellectual property right, the discovery of documents by the opposing parties is limited to "documents and tape recordings relating to any matter in question in such action". Does this mean that a judicial authority presiding in the action would not, in the usual case, have the authority to order the infringer to inform the right holder of the identity of third parties involved in the production and distribution of the infringing goods or services and their channels of distribution (Article 47 of the TRIPS Agreement)?
Your understanding of the legal position in South Africa in regard to discovery of documents is correct. Discovery and production of documents and tape recordings in the High Court of South Africa, and in the Court of the Commissioner of Patents, is dealt with in Rule 35 of the Uniform Rules of Court. Discovery will only be ordered after the institution of proceedings and generally only after the close of pleadings. In special cases, (such as the "Anton Piller" situation), the Court may order, on an ex parte basis, that certain evidence be taken into the possession of a sheriff for its preservation pending the institution of civil proceedings. Statutory provisions for Anton Piller-type orders have been enacted in the Counterfeit Goods Act No. 37 of 1997, Section 11. The provisions of Article 47 are not peremptory; Members may provide that judicial authorities will have the authority to order the infringer to provide information regarding the identity of third persons involved. In terms of South African law, a right holder who has a reasonable suspicion that an infringer has information, such as information pertaining to the identity of third parties, which may be relevant to the proceedings in question, could proceed on the basis of an Anton Piller order, either on the basis of our common law or on the basis of Section 11 of the Counterfeit Goods Act, when that is appropriate, to achieve disclosure of the information concerned.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne 5. The Appellate Division of the Supreme Court of South Africa (now the Supreme Court of Appeal) recently laid down, in clear and succinct terms, what an applicant for an Anton Piller order has to establish. This may fairly be referred to as "a common law Anton Piller order". In the Counterfeit Goods Bill, which is currently passing through the South African parliamentary process, relatively elaborate provisions are made for the grant of an Anton Piller order. This, in turn, may fairly be termed "a statutory Anton Piller order". Could the Government of South Africa clarify the following points: - In the light of the availability of a common law Anton Piller order what is the need for a statutory Anton Piller order? - Since the requirements to obtain a common law Anton Piller order appear to be less stringent than a statutory Anton Piller order, would not an applicant in the usual case make an application for a common law Anton Piller order (and not a statutory Anton Piller order)? - Do the requirements of a common law Anton Piller order and the statutory Anton Piller Order comply with Article 50 of the TRIPS Agreement? Please explain.
The South African Courts have traditionally been conservative in their approach to common law Anton Piller orders, and until the recent decision by the Supreme Court of Appeal, differences existed between the approaches followed in the different provincial divisions. The provision of the statutory Anton Piller order within the parameters of the Counterfeit Goods Act brings about certainty in regard to this proceeding in the context of an anti-counterfeiting action, to ensure effective measures to combat the escalating level of counterfeiting activity. In cases which do not fall within the parameters of the Counterfeit Goods Act, an applicant will have to make use of a common law Anton Piller order. In circumstances falling within the parameters of the Counterfeit Goods Act, the applicant can elect to use either the common law or the statutory Anton Piller order. Both the common law and the statutory Anton Piller orders comply substantially with Article 50 of the TRIPS Agreement.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne 6. With regard to cases that involve the infringement of intellectual property, could the Government of South Africa provide data on the number of: - law suits that have been filed including their respective outcome and the average length from the filing of a complaint until the final judgement; - injunctions that have been issued (as defined in Article 44 of the TRIPS Agreement) and explain how such injunctions are being enforced; - provisional measures (as defined in Article 50 of the TRIPS Agreement) that have been granted and the average length to obtain such measures (from the request); - suspensions at the border of counterfeit trademark/pirated copyright goods or in relation to goods where other intellectual property rights are infringed; - criminal cases including the sentences that have been applied; whether they have been executed; and please also explain what kind of infringement of an intellectual property right would be regarded as a violation of criminal law; - seizures and/or destruction of counterfeit trademark and pirated copyright goods.
The data requested in the first part of question 6 is not available in readily accessible form. To assemble the necessary facts and figures would entail the application of resources not available at present.
30/04/1999
IP/Q4/ZAF/1 Afrique du Sud Union européenne Furthermore, could the Government of South Africa explain and give practical examples of: - how the compensation for damages of the infringement of intellectual property rights is calculated (Article 45.1 of the TRIPS Agreement); - what would be regarded as "expenses of the right holder" which have to be reimbursed pursuant to Article 45.2, first half of the first sentence, of the TRIPS Agreement and how they would be calculated; - whether attorney’s fees can be reimbursed and how such fees would be calculated; - whether Article 45.2, second sentence, of the TRIPS Agreement has been implemented in South Africa and how such "damages" would be calculated?
As regards the second part of question 6, the position is as follows: - Damages for infringement will be either actual loss proved to have been sustained, or, at the option of the plaintiff, an amount calculated on the basis of reasonable royalty which would have been payable by a licensee. See Patents Act - Section 65; Copyright Act - Section 24; Trade Marks Act - Section 34; Designs Act - Section 35. - The "expenses of the right holder" would be the actual costs incurred in the course of the legal proceedings on the basis of infringement, being appropriate attorneys' fees and actual disbursements such as the making of copies, payment of counsel's fees, etc. - Attorneys' fees can thus be reimbursed; the amount payable would be based on the applicable High Court tariff. - Article 45.2 is not peremptory. Generally speaking, "profits" or "pre-established damages" in cases of innocent infringement (i.e. where the infringer did not know or had no reasonable ground to know), will not be awarded. See Patents Act - Section 66(1); Copyright Act - Section 24(2); Designs Act - Section 35(6).
30/04/1999

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