IP REFORM
Te court’s decision will then be subject to an appeal that should be filed within 30 days of the communication date. Te appeal will be heard by a panel of two judges, whose decision will be final.
Te second important modification to be introduced in the industrial property laws refers to the provisional measures the court can order at the request of the rights holder in case of an infringement.
Currently, each industrial property law has different stipulations with respect to the provisional measures available. When the changes come into force, all these laws will have identical provisions, imposing identical conditions for the ordering of provisional measures.
At first glance, these new conditions do not depart significantly from the current legislation. However, terminology that is slightly different from that used in the current legislation might cause some interpretation issues, especially at the early stages of implementation.
For example, the current legislation established as a condition for the ordering of provisional measures the existence or imminence of “irreparable harm”. Te new provisions talk about a “difficult to repair prejudice”. While the first notion has been used for a long time in the Romanian legal system and its meaning has been established by extensive doctrine and jurisprudence, the new notion of a “difficult to repair prejudice” has not been used in the past and will definitely be a cause for debate and controversial interpretations once it comes into force.
Furthermore, this new notion is not used in the general stipulations for provisional measures in civil procedures, where the old concept of “irreparable harm” will continue to be used, which raises some questions as to the intention of the legislator and whether this provision was meant as a special condition, or is just a result of a faulty translation and implementation of the enforcement directive.
Te new provisions appear to favour the rights holders, since the conditions set forth by these seem to be easier to fulfil than the current legislation. However, one must consider that the provisional measures are exceptional, and that the conditions set out in the legislation for the ordering of such measures are meant to ensure a balance between the rights of the parties in the absence of a court decision on the merits of the case.
Te answers to all these questions will be brought about only by jurisprudence and, at least to some degree, by the relevant doctrine, which means that
answers will not be available for at least a year or more, when we will have the first final decisions in relevant cases.
Modifications of Ordinance 100/2005
Te law implementing the new Civil Procedure Code will bring important modifications to Ordinance 100/2005, implementing the provisions of the Enforcement Directive (Directive 2004/48/EC) in Romanian legislation.
According to these new provisions, the entire chapter regarding the provisional measures will be deleted from the ordinance. All the relevant provisions will now be included in a special section of the new Civil Procedure Code entitled ‘Provisional measures in the field of IP rights’.
Tis new section contains provisions that use the same terminology as the provisions introduced in the industrial property laws mentioned above, which will cause the same interpretation issues.
Furthermore, special conditions are set in case the infringement is undertaken using mass media, in which case provisional measures will be ordered only if an extremely grave prejudice is suffered by the rights holder.
Te question of security is also addressed differently. According to the current provisions the rights holder is required to post a security when requesting a provisional measure, but the new conditions state that the court “may” request the rights holder to post a security.
70 World Intellectual Property Review Annual 2012
www.worldipreview.com
Te rights holder can request the court to release the security if the defendant has not requested damages. Te defendant can oppose the release of the security, in which case the court will set a deadline that cannot exceed 30 days for the damages claim to be filed.
Also, a fixed period of 30 days is set for rights holders that have requested provisional measures to file infringement actions. Otherwise, the provisional measures automatically cease.
Te rights holder will have to repair any damage caused to the defendant if the infringement action is rejected. However, if the rights holder has not intentionally caused the damage, the court can reject a claim for damages, or at least limit the amount of damages awarded.
It appears that the legislator has attempted a somewhat different implementation of the provisions of the enforcement directive than the ones currently made by Ordinance 100/2005. Whether the desired effect will be accomplished remains to be seen.
Te law implementing the new Civil Procedure Code is still being discussed in parliament at the time of writing. Since the procedure is moving along slowly it is possible that the new code will not enter into force at the expected date. In any case, it is certain that sooner or later it will come into force and most likely, although modifications are still possible, it will contain the provisions discussed above. n
Dragosh Marginean is a senior partner at Ratza & Ratza in Bucharest, Romania. He can be contacted at:
dm@ratza-ratza.com
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76 |
Page 77 |
Page 78 |
Page 79 |
Page 80 |
Page 81 |
Page 82 |
Page 83 |
Page 84 |
Page 85 |
Page 86 |
Page 87 |
Page 88 |
Page 89 |
Page 90 |
Page 91 |
Page 92 |
Page 93 |
Page 94 |
Page 95 |
Page 96 |
Page 97 |
Page 98 |
Page 99 |
Page 100 |
Page 101 |
Page 102 |
Page 103 |
Page 104 |
Page 105 |
Page 106 |
Page 107 |
Page 108 |
Page 109 |
Page 110 |
Page 111 |
Page 112 |
Page 113 |
Page 114 |
Page 115 |
Page 116 |
Page 117 |
Page 118 |
Page 119 |
Page 120 |
Page 121 |
Page 122 |
Page 123 |
Page 124 |
Page 125 |
Page 126 |
Page 127 |
Page 128 |
Page 129 |
Page 130 |
Page 131 |
Page 132 |
Page 133 |
Page 134 |
Page 135 |
Page 136 |
Page 137 |
Page 138 |
Page 139 |
Page 140 |
Page 141 |
Page 142 |
Page 143 |
Page 144 |
Page 145 |
Page 146 |
Page 147 |
Page 148 |
Page 149 |
Page 150 |
Page 151 |
Page 152 |
Page 153 |
Page 154 |
Page 155 |
Page 156 |
Page 157 |
Page 158 |
Page 159 |
Page 160 |
Page 161 |
Page 162 |
Page 163 |
Page 164 |
Page 165 |
Page 166 |
Page 167 |
Page 168 |
Page 169 |
Page 170 |
Page 171 |
Page 172 |
Page 173 |
Page 174 |
Page 175 |
Page 176 |
Page 177 |
Page 178 |
Page 179 |
Page 180