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.

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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 Union européenne (Follow-up questions from the EC) As set forth in question 7, please provide practical examples with respect to the following: (a) how the compensation for damages for the infringement of intellectual property rights is calculated (Article 45.1 of the TRIPS Agreement); (b) what would be regarded as "expenses of the right holder" which have to be reimbursed pursuant to Article 45.2, first half of the sentence and how they would be calculated; and (c) on what basis "damages" as set forth in Article 45.2 would, in fact, be calculated?
See the answer to the follow-up question to question 2 above.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Union européenne Could the US explain in detail the conditions for the grant of a preliminary injunction or temporary restraining order in intellectual property right-related cases?
To obtain a preliminary injunction, courts have generally required that the moving party demonstrate some or all of the following: a substantial likelihood that it will prevail on the merits of its case; that it will suffer irreparable injury if preliminary relief is not granted; that the threatened injury to it outweighs the harm an injunction might cause the defendant; and that the preliminary injunction will not have a serious adverse effect on the public. A temporary restraining order (TRO) may be granted by a court where it clearly appears from specific facts shown by an affidavit or by a verified complaint that immediate and irreparable injury will result before the adverse party or his attorney can be heard in opposition, and the complainant’s attorney has certified to the court, in writing, the efforts which have been made to give notice and the reasons supporting his claim that notice should not be required. See Rule 65, Federal Rules of Civil Procedure.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Union européenne Could the US explain in detail the conditions applied and the scope of the right conferred when preliminary relief is granted giving the right to obtain evidence inaudita altera parte?
Security is required as a condition for obtaining a TRO or a preliminary injunction in an amount sufficient to cover costs and damages to the party wrongfully enjoined or restrained. Temporary restraining orders expire within ten days unless extended for good cause shown or if the adverse party consents to a longer period. A motion for preliminary injunction must be scheduled for a hearing at the earliest possible time and, the party obtaining the TRO does not proceed with the request for preliminary injunctions, the TRO will be dissolved. See Rule 65, Federal Rules of Civil Procedure. The function of a preliminary injunction is to preserve the status quo pending a determination of the action on the merits. The scope of the preliminary injunction depends upon the facts of the particular dispute.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Union européenne If indeed there exists no statistical data on the time and cost (including official and legal fees) required to obtain such preliminary relief, could the US provide estimates?
Because the factors influencing the cost and time of obtaining relief, permanent or preliminary, are so many and varied, the US Government cannot provide estimates.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Union européenne 8. Section 337 of the United States Tariff Act, as amended, gives United States' right holders the possibility to request the United States International Trade Commission to declare unlawful, under certain conditions, the importation or sale of articles that infringe valid United States' patents, registered trademarks, registered copyrights or registered mask works of a semiconductor chip product. Please explain why this procedure is limited to foreign goods and not extended to domestic products. Against this background, please also explain how such legislation complies with the United States' obligations under the relevant WTO Agreements.
The United States amended Section 337 of the Tariff Act of 1930, 19 U.S.C. 1337, as part of our implementation of the Uruguay Round results. As stated in the "Statement of Administrative Action" accompanying the Uruguay Round Agreements Act, those amendments bring US procedures into conformity with national treatment obligations under GATT 1994, while providing for effective enforcement of intellectual property rights at the border. Moreover, the procedures applied under Section 337 fully comply with Article 49 of the TRIPS Agreement 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 TRIPS Agreement, negotiated after a panel report was issued 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 1994 amendments to Section 337 made the following changes to USITC procedures to implement the panel’s recommendations: - Elimination of 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 establish a "target date" for completion of an investigation within 45 days after it is initiated. 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 target dates for the completion of various stages of litigation; - 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 Union européenne [Follow-up question from the EC] Could the United States itself provide the same categories of statistics regarding its own situation as it has requested of all others in its two general follow-up questions on civil and criminal enforcement?
To the degree that such information is available, we have.
18/12/1998
IP/Q4/USA/1 États-Unis d'Amérique Union européenne [Additional question from the EC] Under the United States regulations, since 1 January 1996 works in respect of which copyright has been restored are automatically protected under the Bern Convention and the TRIPS Agreement but the enforcement of this protection is subordinated to compliance by the copyright holders with the "notice of intent to enforce" procedure with regard to users of the works (17 U.S.C., paragraph 104 A(d) (2)). Since 1 January 1998, it has no longer been possible to use the general notification procedure ("constructive notice") filed with the Copyright Office; hence the only means of enforcement open to copyright holders is the individual notification procedure, which is very difficult to do in practice as it implies identifying the United States users and sending them a personal notice. In the circumstances, the United States Government should clarify whether the automatic character of the protection granted to these works enables copyright holders to bring a civil or criminal action against infringers even absent a general or individual notification, and describe the conditions in which such actions may be brought, the evidence available to the copyright holder and the sanctions that may be imposed on infringers. The steps that have to be taken under the individual notice procedure are long, complex and costly: the United States Government should therefore explain how this procedure is consistent with Article 41.1 of the TRIPS Agreement, which provides that enforcement procedures shall permit effective action against any act of infringement of intellectual property rights and be applied in such a manner as to avoid the creation of barriers to legitimate trade; and with Article 41.2, which provides that procedures concerning the enforcement of intellectual property rights shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.
As noted in the question itself, works in respect of which copyright has been restored in the United States receive protection automatically without the need for compliance with any formality. 17 U.S.C. § 104A(a)(1)(A). The European Communities and their Member States are incorrect, however, that enforcement of this protection generally requires compliance with the "notice of intent to enforce" procedures set out in the law. Service of a notice of intent to enforce is required only with respect to a claim against a person who used the work in certain ways prior to restoration-a "reliance party", as defined in the Copyright Act (§104(h)(4)) and only if the copyright owner has not filed such a notice with the Copyright Office within the two-year period set out in the Act (§104A(d)(2)(A)). As to all other users of restored works - the vast majority of infringement claims - the copyright owner can proceed with an infringement case in the same manner and to the same extent as for a newly created work. See §104A(d)(1) (Enforcement of Copyright in Restored Works in the Absence of a Reliance Party). Accordingly, the "notice of intent to enforce" procedures apply only in a narrow category of circumstances. As explained by the United States in response to question 5 from the European Communities and their Member States in connection with the July 1996 TRIPS Council Review of Copyright Legislation, this approach to restoration of works in the public domain is fully consistent with the requirements of Berne Article 18 and Articles 9 and 14.6 of the TRIPS Agreement, as a reasonable and limited "condition of application" of the principle of retroactive protection, to deal with the special situation of those who have in the past invested in the use of material then in the public domain. In response to the request for a description in the second paragraph of the question, the conditions in which infringement actions may be brought with respect to restored works, the evidence available to the copyright owner, and the sanctions that may be imposed on infringers, are all identical to those involved with respect to any other copyrighted work. Finally, the United States disagrees with the question's characterization of the notice procedure as "long, complex and costly". The procedure could not be simpler or more inexpensive. It merely entails sending a short statement on a piece of paper, in no particular format, signed by the copyright owner. The statement must set out the basic facts necessary to indicate a claim: the work's title (including a translation or alternative titles), the address and telephone number of the copyright owner, the use to which the copyright owner objects, and, in the case of a derivative work based on the restored work, an identification of that derivative work. While service of a notice does necessitate locating the reliance party in the United States, this is no more difficult than identifying any infringer located in another country.
18/12/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for the effective enforcement of the intellectual property rights covered by the Agreement. IP/N/6/SWE/1 describes jurisdiction in relation to copyright, patent, trademark, and industrial design cases. Please state whether the same jurisdiction applies in connection with geographical indications, integrated circuit layout-designs, and rights in undisclosed information and, if not, describe identify the courts that are responsible for infringement actions in relation to those rights.
As regards the protection of integrated circuit layout-designs and as regards rights in undisclosed information, the same the same jurisdiction applies as in the case of copyright and other intellectual property rights. However, a special regime applies as regards geographical indications. Those enjoy protection under the Marketing Act (Act 1995 No. 450). There is a special system of sanctions for violations of that Act. Thus, any person who intentionally or with carelessness contravenes the provisions of the Act may be ordered to pay to the State a "market disruption fee" of between Skr 5 000 and Skr 5 000 000, and, in addition, be subject to prohibition and information orders and may be ordered to pay a compensation for damages, etc. Procedures for the imposition of a market disruption fee may be initiated at the District Court of Stockholm by the Consumer Ombudsman (an official who must be a lawyer and who is appointed by the Government under the Marketing Act to deal with matters relating to marketing practices, etc.). If the Consumer Ombudsman in a particular case decides not to present an application for a market disruption fee, any businessman affected by the marketing and any association of such businessmen may institute such a proceeding. Furthermore, actions relating to prohibition orders (against the continuation of marketing actions which would violate the Act) may be instituted at the Stockholm City Court by the Consumer Ombudsman, by any businessman affected by the marketing activities and any association of consumers, businessmen or wage or salary earners. Interim decisions may be issued by the Court while proceedings are pending. Finally, actions relating to the payment of damages may be instituted either at the Stockholm City Court or at any District Court which is competent under the Code of Judicial Procedure. The Consumer Ombudsman has the authority to order certain such orders himself, primarily such which concern obligations for a businessman to provide information concerning such products and acts where a violation of the Marketing aAct may occur. These decisions by the Ombudsman may be appealed to the Stockholm City Court. Any judgements by the Stockholm City Court or any other District Court may be appealed against to the so-called Market Court. This Court is a specialized court competent in matters concerning the Marketing Act and matters concerning unfair competition or concerning, for instance, product liability and contract terms in consumer relations. The Market Court consists of a President and a Vice President, who must have experience as judges, and five special members who must be economic experts. The Market Court is the final instance in, inter alia, matters relating to the application of the Marketing Act.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 2. Please describe briefly the procedure that must be followed by a foreign party to initiate an enforcement procedure in the courts.
The procedures for initiating enforcement procedures are the same for foreign parties as for Swedish nationals (see, however, the reply to question 3).
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 3. Please identify any requirement that a foreign party must meet to initiate a proceeding in the courts that is not required of a national or resident of Sweden and cite the legal authorities providing for those differences.
The Act (1980 No. 307) on the Duty for Foreign Claimants to Post a Bond for Litigation Costs contains provisions on what foreign claimants have to comply with in this respect. Basically, where a foreign national not having his residence in Sweden or a foreign legal entity wants to initiate an action at a Swedish court against a Swedish national or a Swedish legal entity, he must, upon request by the defendant, post a bond for the litigation costs which he may be ordered to pay under a final decision in the case. Then there are a number of detailed provisions about the waiver of that duty (for instance in relation to persons from the European Economic Area), about the nature of the bond, etc. which are, however, too detailed to be dealt with here.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 4. Please explain any provisions in the enforcement system in Sweden that ensure expeditious remedies. In addition, please explain what provisions are available to prevent deliberate delays by the parties to a proceeding and indicate the circumstances in which such provisions will be applied.
There are a number of provisions in the Swedish Code of Judicial Procedure which aim at securing the availability of expeditious remedies. For instance, Chapter 18, Article 6, of the Code makes it possible to take certain actions against any party who, through the failure to appear or to comply with a court order, or the presentation of a claim or defence that he knew or should have known to be without merit, or carelessness or oversight in other respects, has caused adjournment of the proceedings or has otherwise caused expenses for the adverse party. Such a party shall reimburse the adverse party for such expenses regardless of how costs in the case in general are to be distributed. Also, Article 7 in the same Chapter contains a provision on the liability of an attorney in case he has caused expenses through having initiated an action without provocation from his adversary or has otherwise deliberately or negligently caused unnecessary litigation. In such a case, the Court may impose joint liability for costs upon the party and his representative. Furthermore, Chapter 42, Article 15 of the Code gives the Court the authority to order a party to determine finally his claims and state the evidence that he wants to invoke, where this is called for taking into account the way in which the party has acted earlier in the proceedings. After the expiry of the time within which such an order has to be complied with, the party in question must not invoke any new circumstances or invoke any new evidence where he can not make it plausible that there was a valid excuse for his non-action in this respect. Furthermore, the Code contains provisions on so called "Default Judgement" which may be pronounced in cases amenable to out-of-court settlement. Such a judgement may be entered where a party has been directed to appear before the Court with the consequence that otherwise a default judgement may be entered against him and he nevertheless does not appear and, furthermore, that the appearing party requests such a judgement.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 5. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably be in writing, the better to determine the reasoning on which the decision is based. Please state whether judges must render their decisions in writing and cite the legal authorities requiring such written opinions.
Obviously, any judgements or decisions by judges have to be rendered in writing, inter alia, to make appeals possible. Thus, Chapter 17, Article 7 prescribes that "any judgements shall be in writing and contain …".
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 6. Article 42 requires that defendants be notified of judicial and administrative intellectual property enforcement proceedings brought against them. Please describe the procedures for notifying defending parties regarding proceedings that have been initiated against them, indicate the information provided regarding the proceeding and cite the legal authorities establishing these procedures.
The general provisions on applications for summons and on the calling on the defendant to answer the claims in such applications are contained in Chapter 42, Articles 1 to 6 of the Code on Judicial Procedure (as regards civil cases) and in Chapter 45, Articles 1 to 9 of the same Code (as regards penal proceedings). These provisions apply in intellectual property cases as well as in other cases. Dealing here only with civil cases and leaving details aside, the provisions prescribe basically the following. Anyone who desires the issuance of a summons shall file a written application in this respect to the competent court. The application shall be signed by the plaintiff or his attorney and shall contain indications about the circumstances upon which the action is founded, the demand for relief, the documentary evidence offered and the circumstances which make the court competent. Where the summons application fails to comply with the relevant requirements or is otherwise incomplete, the Court shall direct the plaintiff to cure the defect. Where such directives are not complied with, the result is generally that the application may be dismissed. If the application is not dismissed, the Court shall issue a summons calling upon the defendant to answer the claim. The summons together with the summons application and the documents annexed thereto (for instance evidence) shall be served upon the defendant. There are no explicit time-limits within which the Court has to serve that summons in civil cases. Neither are there, generally speaking, such time-limits in criminal cases; however, if the defendant is under arrest or detention, there are time-limits within which the prosecutor has to file an application for summons in the case. Those time-limits differ somewhat depending on the situation and the seriousness of the case. It would be too complicated to go into details on these issues here, more so as these situations do not occur frequently in intellectual property cases.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 7. Article 43.2 provides that, in the event a party refuses to provide information ordered by judicial officials, those officials may be authorized to make preliminary and final determinations adverse to that party. IP/N/6/SWE/1 states that fines can be imposed in the event a person fails to produce a document ordered by the court. May judges order parties to provide information not contained in a document and have the authority to make determinations adverse to the party refusing to provide information or documents?
In addition to the provisions on documentary evidence contained in Chapter 38 of the Code of Judicial Procedure, that Code also contains provisions on the hearing of witnesses (Chapter 36), of parties under truth affirmation (Chapter 37), or experts (Chapter 40) and on examination of objects (Chapter 39). Also, a special provision in the Code deals with the evidentiary value to be given to a party's behaviour in the proceedings. In this respect, Chapter 35, Article 4, prescribes that if a party fails to respond to an order by a court to appear before it or to perform any other procedural act, or refuses to answer a question relevant to the investigation, the Court shall determine, in view of all the relevant circumstances, the evidentiary significance of the party's behaviour. Generally speaking, the Court shall, in accordance with what its conscience dictates, determine what has been proved in the case after evaluating everything that has occurred in the proceedings (Chapter 35, Article 1, of the Code of Judicial Procedure). This is the so-called "Principle of Free Evaluation of Evidence" upon which the Swedish Court procedures, and legal system in general, are based.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 8. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use by third parties authorized by the government, limiting the remedy for infringement to payment of adequate remuneration as provided in Article 31(h). Please describe any such limitations on remedies in the laws of Sweden and cite the legal authorities providing for those limitations.
There are no such limitations on remedies as mentioned in the question.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 9. Article 50.1 require that judicial authorities have the authority to order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged infringement. IP/N/6/SWE/1 describes the authority which exists to prevent further infringement or to preserve assets that might be needed to satisfy a judgement. Please identify any provisional measures available to preserve relevant evidence in regard to an alleged infringement and cite the relevant legal authority.
Provisions on orders for the preservation of evidence are contained in various provisions in the Code of Judicial Procedure. Thus, Chapter 27, Article 1, of that Code prescribes, as regards criminal proceedings: "Objects which reasonable can be assumed to be of importance for the investigation of an offence, or to have been taken from a person by an offence or to be subject to forfeiture by reason of an offence may be seized" ("tagna i beslag"); according to Article 5 of the same Chapter, Courts may, if delay entails risks, issue such seizure orders immediately to remain effective until otherwise ordered. In addition to these provisions also Chapter 15 of the same Code contains provisions on general provisional measures in civil cases. These have been elaborated on in some detail in Sweden's responses to the Checklist of Issues on Enforcement submitted by the Ministry of Justice in April 1996. Such measures may also, in practice, serve the purpose of securing evidence. Furthermore, Chapter 38, Article 2, of the Code (which provision has general application in all types of cases) prescribes that "anyone possessing a document that can be assumed to be of importance as evidence is obliged to produce it" and Article 4 of the same Chapter prescribes that "when anyone is under an obligation to produce a document as evidence, the Court may direct him to produce it". Essentially, the same provisions apply as regards examination of objects etc., provided for in Chapter 39 of the Code. All these provisions imply that provisional measures for the preservation of evidence are available under Swedish procedural law. In addition to what has been said now, also the application of some provisions in the intellectual property laws may have the effect of securing evidence in a particular case. Thus, for instance, Article 41 of the Trademark Act and Article 55 of the Copyright Act contain provisions on the seizure, also on a provisional basis of goods or objects in respect of which an infringement may have occurred. Such seized goods or objects may certainly also be of importance for evidentiary purposes.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique [Follow-up question from the US] Sweden's response to question 9 from the US describes the provisional measures which are available under Swedish law to preserve relevant evidence. Please clarify whether any of these measures can be taken without notice to the other party.
Such orders for the preservation of evidence as are mentioned in the reply to question 9 from the US may, if a delay entails risks, be issued immediately, without notice to the other party, to remain effective until otherwise ordered.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 10. Article 50.3 requires that judicial authorities be authorized to require an applicant to provide evidence to establish with a sufficient degree of certainty that the applicant is the right holder and that infringement has occurred or is imminent. With respect to each intellectual property right defined in Article 1.2 of the TRIPS Agreement, please describe the evidence required by right holders to establish ownership.
There are no formal provisions on the evidence required for the holder of an intellectual property right to establish ownership of the right. This follows naturally from, for instance, the provisions on the contents of an application for summons (where the applicant has to state, inter alia, the circumstances upon which the claim is based); these circumstances would, if properly presented, constitute sufficient reason for the Court to assume that the status of the applicant in this respect is what he claims it to be. However, as regards the ownership of the rights in a literary or artistic work Article 7, first paragraph of the Copyright Act (1960 No. 729) contains a provision to the effect that "a person whose name or generally known pseudonym or signature appears in the usual manner on copies of the work or when it is made available to the public, shall, in the absence of proof to the contrary, be deemed to be its author". This thus establishes a presumption of authorship and consequently also on the right to file an action for a provisional measure.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 11. Article 50.4 requires that parties be notified when provisional measures have been adopted inaudita altera parte. Please describe briefly the procedures followed by each authority able to adopt such measures for notifying affected parties and state the time within which such notice must take place.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement6 provisional measures are available under Swedish law inaudita altera parte in the form of interlocutory injunctions (under special provisions in each one of the intellectual property laws), in the form of general provisional measures in civil cases (Chapter 15, Article 3 of the Code on Judicial Procedure) and in the form of provisional measures and security measures (detention or arrest, provisional attachment, etc.) in criminal cases. From general principles in procedural law in Sweden follows that when an application for a provisional measure is filed and the Court finds it necessary to grant inaudita altera parte the measure applied, the application and the decision on the grant of that measure are served upon the defendant at the same time; the defendant will then have the possibility to request a review of the action taken. It also follows from general principles that cases relating to provisional measures are to be dealt with by the Courts without delay. In established practice this will occur within days. In cases relating to documents or objects there are, however, no determined time-limits in this respect.
26/08/1998
IP/Q4/SWE/1 Suède États-Unis d'Amérique 12. Article 52 of the TRIPS Agreement requires that rights holders wishing to stop importation of counterfeit trademarked goods or pirated copyrighted works present evidence to the competent authorities that there is prima facie infringement of their trademark or copyright. Please explain what evidence will constitute prima facie infringement in Sweden.
As mentioned in Sweden's responses to the Checklist of Issues on Enforcement, Sweden applies the European Union Council Regulation No. 3295/94 of 22 December 1994, as further implemented through the Act on Customs Control of Trademark Infringements of 15 December 1994. As mentioned in connection with question 7, the Swedish legal system is based on a free evaluation of the facts in the case concerned and not on any formal requirements as to the value of certain facts in that respect. Thus, there are no explicit provisions on what would constitute prima facie evidence. In the case of border measures, a corresponding effect will follow from the fact that the application for a border measure shall contain a sufficiently detailed description of the infringing goods and evidence that the applicant is actually the right owner to the relation to the goods (see also above in the response to question 10).
26/08/1998

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