Categories: Законодательство о Промышленной собственности

Law “On Service Inventions, Utility Models and Industrial Designs”

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() Закон КР “О конкуренции”

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Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

(TRIPS Agreement)

WORLD TRADE ORGANIZATION (WTO)

Agreement on Trade-Related Aspects of Intellectual Property Rights

 

Members,

Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;

Recognizing, to this end, the need for new rules and disciplines concerning:

(a) the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;

(b) the provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights;

(c) the provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;

(d) the provision of effective and expeditious procedures for the multilateral prevention and settlement of disputes between governments; and

(e) transitional arrangements aiming at the fullest participation in the results of the negotiations;

Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;

Recognizing that intellectual property rights are private rights;

Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;

Recognizing also the special needs of the least-developed country
Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;

Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures;

Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as “WIPO”) as well as other relevant international organizations;

Hereby agree as follows:

 

PART I. GENERAL PROVISIONS AND BASIC PRINCIPLES

Article 1. Nature and Scope of Obligations

1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.

2. For the purposes of this Agreement, the term “intellectual property” refers to all categories of intellectual property that are the subject of Sections 1 through
of Part II.

3. Members shall accord the treatment provided for in this Agreement to the nationals of other Members.
In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those Conventions.
Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the “Council for TRIPS”).

 

Article 2. Intellectual Property Conventions

1. In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).

2. Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.

 

Article 3. National Treatment

1. Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.

2. Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.

 

Article 4. Most-Favoured-Nation Treatment

With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:

(a) deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;

(b) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country;

(c) in respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;

(d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.

 

Article 5. Multilateral Agreements on Acquisition or Maintenance of Protection

The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

 

Article 6. Exhaustion

For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.

 

Article 7. Objectives

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

 

Article 8. Principles

1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.

2. Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

 

PART II. STANDARDS CONCERNING THE AVAILABILITY, SCOPE AND USE OF INTELLECTUAL PROPERTY RIGHTS

Section 1: Copyright and Related Rights

Article 9. Relation to the Berne Convention

1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

 

Article 10. Computer Programs and Compilations of Data

1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

 

Article 11. Rental Rights

In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.

 

Article 12. Term of Protection

Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.

 

Article 13. Limitations and Exceptions

Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.

 

Article 14. Protection of Performers, Producers of Phonograms (Sound Recordings) and Broadcasting Organizations

1. In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.

2. Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.

3. Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).

4. The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in a Member’s law. If on 15 April 1994 a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.

5. The term of the protection available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the calendar year in which the fixation was made or the performance took place. The term of protection granted pursuant to paragraph 3 shall last for at least 20 years from the end of the calendar year in which the broadcast took place.

6. Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.

 

Section 2: Trademarks

Article 15. Protectable Subject Matter

1. Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.

2. Paragraph 1 shall not be understood to prevent a Member from denying registration of a trademark on other grounds, provided that they do not derogate from the provisions of the Paris Convention (1967).

3. Members may make registrability depend on use. However, actual use of a trademark shall not be a condition for filing an application for registration. An application shall not be refused solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application.

4. The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.

5. Members shall publish each trademark either before it is registered or promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration. In addition, Members may afford an opportunity for the registration of a trademark to be opposed.

 

Article 16. Rights Conferred

1. The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner’s consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Members making rights available on the basis of use.

2. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to services. In determining whether a trademark is well-known, Members shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Member concerned which has been obtained as a result of the promotion of the trademark.

3. Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.

 

Article 17. Exceptions

Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.

 

Article 18. Term of Protection

Initial registration, and each renewal of registration, of a trademark shall be for a term of no less than seven years. The registration of a trademark shall be renewable indefinitely.

 

Article 19. Requirement of Use

1. If use is required to maintain a registration, the registration may be cancelled only after an uninterrupted period of at least three years of non-use, unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner. Circumstances arising independently of the will of the owner of the trademark which constitute an obstacle to the use of the trademark, such as import restrictions on or other government requirements for goods or services protected by the trademark, shall be recognized as valid reasons for non-use.

2. When subject to the control of its owner, use of a trademark by another person shall be recognized as use of the trademark for the purpose of maintaining the registration.

 

Article 20. Other Requirements

The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings. This will not preclude a requirement prescribing the use of the trademark identifying the undertaking producing the goods or services along with, but without linking it to, the trademark distinguishing the specific goods or services in question of that undertaking.

 

Article 21. Licensing and Assignment

Members may determine conditions on the licensing and assignment of trademarks, it being understood that the compulsory licensing of trademarks shall not be permitted and that the owner of a registered trademark shall have the right to assign the trademark with or without the transfer of the business to which the trademark belongs.

 

Section 3: Geographical Indications

 

Article 22. Protection of Geographical Indications

1. Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.

2. In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:

(a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;

(b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).

3. A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.

4. The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.

 

Article 23. Additional Protection for Geographical Indications for Wines and Spirits

1. Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “kind”, “type”, “style”, “imitation” or the like.

2. The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member’s legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.

3. In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.

4. In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.

 

Article 24. International Negotiations; Exceptions

1. Members agree to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23. The provisions of paragraphs 4 through  8 below shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or multilateral agreements. In the context of such negotiations, Members shall be willing to consider the continued applicability of these provisions to individual geographical indications whose use was the subject of such negotiations.

2. The Council for TRIPS shall keep under review the application of the provisions of this Section; the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compliance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.

3. In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.

4. Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either (a) for at least 10 years preceding 15 April 1994 or (b) in good faith preceding that date.

5. Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:

(a) before the date of application of these provisions in that Member as defined in Part  VI; or

(b) before the geographical indication is protected in its country of origin;

measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication.

6. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.

7. A Member may provide that any request made under this Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Member or after the date of registration of the trademark in that Member provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Member, provided that the geographical indication is not used or registered in bad faith.

8. The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person’s name or the name of that person’s predecessor in business, except where such name is used in such a manner as to mislead the public.

9. There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.

 

Section 4: Industrial Designs

 

Article 25. Requirements for Protection

1. Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.

2. Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.

 

Article 26. Protection

1. The owner of a protected industrial design shall have the right to prevent third parties not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.

2. Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.

3. The duration of protection available shall amount to at least 10 years.

 

Section 5: Patents

 

Article 27. Patentable Subject Matter

1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.

2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.

3. Members may also exclude from patentability:

(a) diagnostic, therapeutic and surgical methods for the treatment of humans or animals;

(b) plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.

 

Article 28. Rights Conferred

1. A patent shall confer on its owner the following exclusive rights:

(a) where the subject matter of a patent is a product, to prevent third parties not having the owner’s consent from the acts of: making, using, offering for sale, selling, or importing or these purposes that product;

(b) where the subject matter of a patent is a process, to prevent third parties not having the owner’s consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.

2. Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.

 

Article 29 Conditions on Patent Applicants

1. Members shall require that an applicant for a patent shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention known to the inventor at the filing date or, where priority is claimed, at the priority date of the application.

2. Members may require an applicant for a patent to provide information concerning the applicant’s corresponding foreign applications and grants.

 

Article 30. Exceptions to Rights Conferred

Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties.

 

Article 31. Other Use Without Authorization of the Right Holder

Where the law of a Member allows for other use of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:

(a) authorization of such use shall be considered on its individual merits;

(b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;

(c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi-conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive;

(d) such use shall be non-exclusive;

(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;

(f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;

(g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;

(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;

(i) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;

(j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;

(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;

(l) where such use is authorized to permit the exploitation of a patent (“the second patent”) which cannot be exploited without infringing another patent (“the first patent”), the following additional conditions shall apply:

(i) the invention claimed in the second patent shall involve an important technical advance of considerable economic significance in relation to the invention claimed in the first patent;

(ii) the owner of the first patent shall be entitled to a cross-licence on reasonable terms to use the invention claimed in the second patent; and

(iii) the use authorized in respect of the first patent shall be non-assignable except with the assignment of the second patent.

 

Article 32. Revocation/Forfeiture

An opportunity for judicial review of any decision to revoke or forfeit a patent shall be available.

 

Article 33. Term of Protection

The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.

 

Article 34. Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.

 

Section 6: Layout-Designs (Topographies) of Integrated Circuits

 

Article 35. Relation to the IPIC Treaty

Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as “layout-designs”) in accordance with Articles 2 through (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.

 

Article 36. Scope of the Protection

Subject to the provisions of paragraph 1 of Article 37, Members shall consider unlawful the following acts if performed without the authorization of the right holder  importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design.

 

Article 37. Acts Not Requiring the Authorization of the Right Holder

1. Notwithstanding Article 36, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.

2. The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.

 

Article 38. Term of Protection

1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.

2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.

3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design.

 

Section 7: Protection of Undisclosed Information

 

Article 39

1. In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information in accordance with paragraph 2 and data submitted to governments or governmental agencies in accordance with paragraph 3.

2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices so long as such information:

(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;

(b) has commercial value because it is secret; and

(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.

3. Members, when requiring, as a condition of approving the marketing of pharmaceutical or of agricultural chemical products which utilize new chemical entities, the submission of undisclosed test or other data, the origination of which involves a considerable effort, shall protect such data against unfair commercial use. In addition, Members shall protect such data against disclosure, except where necessary to protect the public, or unless steps are taken to ensure that the data are protected against unfair commercial use.

 

Section 8: Control of Anti-Competitive Practices in Contractual Licences

 

Article 40

1. Members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology.

2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices, which may include for example exclusive grantback conditions, conditions preventing challenges to validity and coercive package licensing, in the light of the relevant laws and regulations of that Member.

3. Each Member shall enter, upon request, into consultations with any other Member which has cause to believe that an intellectual property right owner that is a national or domiciliary of the Member to which the request for consultations has been addressed is undertaking practices in violation of the requesting Member’s laws and regulations on the subject matter of this Section, and which wishes to secure compliance with such legislation, without prejudice to any action under the law and to the full freedom of an ultimate decision of either Member. The Member addressed shall accord full and sympathetic consideration to, and shall afford adequate opportunity for, consultations with the requesting Member, and shall cooperate through supply of publicly available non-confidential information of relevance to the matter in question and of other information available to the Member, subject to domestic law and to the conclusion of mutually satisfactory agreements concerning the safeguarding of its confidentiality by the requesting Member.

4. A Member whose nationals or domiciliaries are subject to proceedings in another Member concerning alleged violation of that other Member’s laws and regulations on the subject matter of this Section shall, upon request, be granted an opportunity for consultations by the other Member under the same conditions as those foreseen in paragraph 3.

 

PART III. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

Section 1: General Obligations


Article 41

1. Members shall ensure that enforcement procedures as specified in this Part are available under their law so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements. These procedures shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.

2. Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.

3. Decisions on the merits of a case shall preferably be in writing and reasoned. They shall be made available at least to the parties to the proceeding without undue delay. Decisions on the merits of a case shall be based only on evidence in respect of which parties were offered the opportunity to be heard.

4. Parties to a proceeding shall have an opportunity for review by a judicial authority of final administrative decisions and, subject to jurisdictional provisions in a Member’s law concerning the importance of a case, of at least the legal aspects of initial judicial decisions on the merits of a case. However, there shall be no obligation to provide an opportunity for review of acquittals in criminal cases.

5. It is understood that this Part does not create any obligation to put in place a judicial system for the enforcement of intellectual property rights distinct from that for the enforcement of law in general, nor does it affect the capacity of Members to enforce their law in general. Nothing in this Part creates any obligation with respect to the distribution of resources as between enforcement of intellectual property rights and the enforcement of law in general.

 

Section 2: Civil and Administrative Procedures and Remedies

 

Article 42. Fair and Equitable Procedures

Members shall make available to right holders civil judicial procedures concerning the enforcement of any intellectual property right covered by this Agreement. Defendants shall have the right to written notice which is timely and contains sufficient detail, including the basis of the claims. Parties shall be allowed to be represented by independent legal counsel, and procedures shall not impose overly burdensome requirements concerning mandatory personal appearances. All parties to such procedures shall be duly entitled to substantiate their claims and to present all relevant evidence. The procedure shall provide a means to identify and protect confidential information, unless this would be contrary to existing constitutional requirements.

 

Article 43. Evidence

1. The judicial authorities shall have the authority, where a party has presented reasonably available evidence sufficient to support its claims and has specified evidence relevant to substantiation of its claims which lies in the control of the opposing party, to order that this evidence be produced by the opposing party, subject in appropriate cases to conditions which ensure the protection of confidential information.

2. In cases in which a party to a proceeding voluntarily and without good reason refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes a procedure relating to an enforcement action, a Member may accord judicial authorities the authority to make preliminary and final determinations, affirmative or negative, on the basis of the information presented to them, including the complaint or the allegation presented by the party adversely affected by the denial of access to information, subject to providing the parties an opportunity to be heard on the allegations or evidence.

 

Article 44. Injunctions

1. The judicial authorities shall have the authority to order a party to desist from an infringement, inter alia to prevent the entry into the channels of commerce in their jurisdiction of imported goods that involve the infringement of an intellectual property right, immediately after customs clearance of such goods. Members are not obliged to accord such authority in respect of protected subject matter acquired or ordered by a person prior to knowing or having reasonable grounds to know that dealing in such subject matter would entail the infringement of an intellectual property right.

2. Notwithstanding the other provisions of this Part and provided that the provisions of Part II specifically addressing use by governments, or by third parties authorized by a government, without the authorization of the right holder are complied with, Members may limit the remedies available against such use to payment of remuneration in accordance with subparagraph (h) of Article 31. In other cases, the remedies under this Part shall apply or, where these remedies are inconsistent with a Member’s law, declaratory judgments and adequate compensation shall be available.

 

Article 45. Damages

1. The judicial authorities shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person’s intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity.

2. The judicial authorities shall also have the authority to order the infringer to pay the right holder expenses, which may include appropriate attorney’s fees. In appropriate cases, Members may authorize the judicial authorities to order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity.

 

Article 46. Other Remedies

In order to create an effective deterrent to infringement, the judicial authorities shall have the authority to order that goods that they have found to be infringing be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to avoid any harm caused to the right holder, or, unless this would be contrary to existing constitutional requirements, destroyed. The judicial authorities shall also have the authority to order that materials and implements the predominant use of which has been in the creation of the infringing goods be, without compensation of any sort, disposed of outside the channels of commerce in such a manner as to minimize the risks of further infringements. In considering such requests, the need for proportionality between the seriousness of the infringement and the remedies ordered as well as the interests of third parties shall be taken into account. In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully affixed shall not be sufficient, other than in exceptional cases, to permit release of the goods into the channels of commerce.

 

Article 47. Right of Information

Members may provide that the judicial authorities shall have the authority, unless this would be out of proportion to the seriousness of the infringement, to order the infringer to inform the right holder of the identity of third persons involved in the production and distribution of the infringing goods or services and of their channels of distribution.

 

Article 48. Indemnification of the Defendant

1. The judicial authorities shall have the authority to order a party at whose request measures were taken and who has abused enforcement procedures to provide to a party wrongfully enjoined or restrained adequate compensation for the injury suffered because of such abuse. The judicial authorities shall also have the authority to order the applicant to pay the defendant expenses, which may include appropriate attorney’s fees.

2. In respect of the administration of any law pertaining to the protection or enforcement of intellectual property rights, Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith in the course of the administration of that law.

 

Article 49. Administrative Procedures

To the extent that any civil remedy can be ordered as a result of administrative procedures on the merits of a case, such procedures shall conform to principles equivalent in substance to those set forth in this Section.

 

Section 3: Provisional Measures

 

Article 50

1. The judicial authorities shall have the authority to order prompt and effective provisional measures:

(a) to prevent an infringement of any intellectual property right from occurring, and in particular to prevent the entry into the channels of commerce in their jurisdiction of goods, including imported goods immediately after customs clearance;

(b) to preserve relevant evidence in regard to the alleged infringement.

2. The judicial authorities shall have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed.

3. The judicial authorities shall have the authority to require the applicant to provide any reasonably available evidence in order to satisfy themselves with a sufficient degree of certainty that the applicant is the right holder and that the applicant’s right is being infringed or that such infringement is imminent, and to order the applicant to provide a security or equivalent assurance sufficient to protect the defendant and to prevent abuse.

4. Where provisional measures have been adopted inaudita altera parte, the parties affected shall be given notice, without delay after the execution of the measures at the latest. A review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period after the notification of the measures, whether these measures shall be modified, revoked or confirmed.

5. The applicant may be required to supply other information necessary for the identification of the goods concerned by the authority that will execute the provisional measures.

6. Without prejudice to paragraph 4, provisional measures taken on the basis of paragraphs 1 and 2 shall, upon request by the defendant, be revoked or otherwise cease to have effect, if proceedings leading to a decision on the merits of the case are not initiated within a reasonable period, to be determined by the judicial authority ordering the measures where a Member’s law so permits or, in the absence of such a determination, not to exceed 20 working days or 31 calendar days, whichever is the longer.

7. Where the provisional measures are revoked or where they lapse due to any act or omission by the applicant, or where it is subsequently found that there has been no infringement or threat of infringement of an intellectual property right, the judicial authorities shall have the authority to order the applicant, upon request of the defendant, to provide the defendant appropriate compensation for any injury caused by these measures.

8. To the extent that any provisional measure can be ordered as a result of administrative procedures, such procedures shall conform to principles equivalent in substance to those set forth in this Section.

 

Section 4: Special Requirements Related to Border Measures

 

Article 51 Suspension of Release by Customs Authorities

Members shall, in conformity with the provisions set out below, adopt procedures  to enable a right holder, who has valid grounds for suspecting that the importation of counterfeit trademark or pirated copyright goods may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation of such goods. Members may enable such an application to be made in respect of goods which involve other infringements of intellectual property rights, provided that the requirements of this Section are met. Members may also provide for corresponding procedures concerning the suspension by the customs authorities of the release of infringing goods destined for exportation from their territories.

 

Article 52. Application

Any right holder initiating the procedures under Article 51 shall be required to provide adequate evidence to satisfy the competent authorities that, under the laws of the country of importation, there is prima facie an infringement of the right holder’s intellectual property right and to supply a sufficiently detailed description of the goods to make them readily recognizable by the customs authorities. The competent authorities shall inform the applicant within a reasonable period whether they have accepted the application and, where determined by the competent authorities, the period for which the customs authorities will take action.

 

Article 53. Security or Equivalent Assurance

1. The competent authorities shall have the authority to require an applicant to provide a security or equivalent assurance sufficient to protect the defendant and the competent authorities and to prevent abuse. Such security or equivalent assurance shall not unreasonably deter recourse to these procedures.

2. Where pursuant to an application under this Section the release of goods involving industrial designs, patents, layout-designs or undisclosed information into free circulation has been suspended by customs authorities on the basis of a decision other than by a judicial or other independent authority, and the period provided for in Article 55 has expired without the granting of provisional relief by the duly empowered authority, and provided that all other conditions for importation have been complied with, the owner, importer, or consignee of such goods shall be entitled to their release on the posting of a security in an amount sufficient to protect the right holder for any infringement. Payment of such security shall not prejudice any other remedy available to the right holder, it being understood that the security shall be released if the right holder fails to pursue the right of action within a reasonable period of time.

 

Article 54. Notice of Suspension

The importer and the applicant shall be promptly notified of the suspension of the release of goods according to Article 51.

 

Article 55. Duration of Suspension

If, within a period not exceeding 10 working days after the applicant has been served notice of the suspension, the customs authorities have not been informed that proceedings leading to a decision on the merits of the case have been initiated by a party other than the defendant, or that the duly empowered authority has taken provisional measures prolonging the suspension of the release of the goods, the goods shall be released, provided that all other conditions for importation or exportation have been complied with; in appropriate cases, this time-limit may be extended by another 10 working days. If proceedings leading to a decision on the merits of the case have been initiated, a review, including a right to be heard, shall take place upon request of the defendant with a view to deciding, within a reasonable period, whether these measures shall be modified, revoked or confirmed. Notwithstanding the above, where the suspension of the release of goods is carried out or continued in accordance with a provisional judicial measure, the provisions of paragraph 6 of Article 50 shall apply.

 

Article 56. Indemnification of the Importer and of the Owner of the Goods

Relevant authorities shall have the authority to order the applicant to pay the importer, the consignee and the owner of the goods appropriate compensation for any injury caused to them through the wrongful detention of goods or through the detention of goods released pursuant to Article 55.

 

Article 57. Right of Inspection and Information

Without prejudice to the protection of confidential information, Members shall provide the competent authorities the authority to give the right holder sufficient opportunity to have any goods detained by the customs authorities inspected in order to substantiate the right holder’s claims. The competent authorities shall also have authority to give the importer an equivalent opportunity to have any such goods inspected. Where a positive determination has been made on the merits of a case, Members may provide the competent authorities the authority to inform the right holder of the names and addresses of the consignor, the importer and the consignee and of the quantity of the goods in question.

 

Article 58. Ex Officio Action

Where Members require competent authorities to act upon their own initiative and to suspend the release of goods in respect of which they have acquired prima facie evidence that an intellectual property right is being infringed:

(a) the competent authorities may at any time seek from the right holder any information that may assist them to exercise these powers;

(b) the importer and the right holder shall be promptly notified of the suspension. Where the importer has lodged an appeal against the suspension with the competent authorities, the suspension shall be subject to the conditions, mutatis mutandis, set out at Article 55;

(c) Members shall only exempt both public authorities and officials from liability to appropriate remedial measures where actions are taken or intended in good faith.

 

Article 59. Remedies

Without prejudice to other rights of action open to the right holder and subject to the right of the defendant to seek review by a judicial authority, competent authorities shall have the authority to order the destruction or disposal of infringing goods in accordance with the principles set out in Article 46. In regard to counterfeit trademark goods, the authorities shall not allow the re-exportation of the infringing goods in an unaltered state or subject them to a different customs procedure, other than in exceptional circumstances.

 

Article 60. De Minimis Imports

Members may exclude from the application of the above provisions small quantities of goods of a non-commercial nature contained in travellers’ personal luggage or sent in small consignments.

 

Section 5: Criminal Procedures

Article 61

Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.

PART IV. ACQUISITION AND MAINTENANCE OF INTELLECTUAL PROPERTY RIGHTS AND RELATED INTER PARTES PROCEDURES

Article 62

1. Members may require, as a condition of the acquisition or maintenance of the intellectual property rights provided for under Sections 2 through 6 of Part II, compliance with reasonable procedures and formalities. Such procedures and formalities shall be consistent with the provisions of this Agreement.

2. Where the acquisition of an intellectual property right is subject to the right being granted or registered, Members shall ensure that the procedures for grant or registration, subject to compliance with the substantive conditions for acquisition of the right, permit the granting or registration of the right within a reasonable period of time so as to avoid unwarranted curtailment of the period of protection.

3. Article 4 of the Paris Convention (1967) shall apply mutatis mutandis to service marks.

4. Procedures concerning the acquisition or maintenance of intellectual property rights and, where a Member’s law provides for such procedures, administrative revocation and inter partes procedures such as opposition, revocation and cancellation, shall be governed by the general principles set out in paragraphs 2 and 3 of Article 41.

5. Final administrative decisions in any of the procedures referred to under paragraph 4 shall be subject to review by a judicial or quasi-judicial authority. However, there shall be no obligation to provide an opportunity for such review of decisions in cases of unsuccessful opposition or administrative revocation, provided that the grounds for such procedures can be the subject of invalidation procedures.

 

PART V. DISPUTE PREVENTION AND SETTLEMENT

Article 63. Transparency

1. Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement (the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights) shall be published, or where such publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them. Agreements concerning the subject matter of this Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

2. Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement. The Council shall attempt to minimize the burden on Members in carrying out this obligation and may decide to waive the obligation to notify such laws and regulations directly to the Council if consultations with WIPO on the establishment of a common register containing these laws and regulations are successful. The Council shall also consider in this connection any action required regarding notifications pursuant to the obligations under this Agreement stemming from the provisions of Article 6ter of the Paris Convention (1967).

3. Each Member shall be prepared to supply, in response to a written request from another Member, information of the sort referred to in paragraph 1. A Member, having reason to believe that a specific judicial decision or administrative ruling or bilateral agreement in the area of intellectual property rights affects its rights under this Agreement, may also request in writing to be given access to or be informed in sufficient detail of such specific judicial decisions or administrative rulings or bilateral agreements.

4. Nothing in paragraphs 1, 2 and 3 shall require Members to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.

 

Article 64. Dispute Settlement

1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement except as otherwise specifically provided herein.

2. Subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 shall not apply to the settlement of disputes under this Agreement for a period of five years from the date of entry into force of the WTO Agreement.

3. During the time period referred to in paragraph 2, the Council for TRIPS shall examine the scope and modalities for complaints of the type provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 made pursuant to this Agreement, and submit its recommendations to the Ministerial Conference for approval. Any decision of the Ministerial Conference to approve such recommendations or to extend the period in paragraph 2 shall be made only by consensus, and approved recommendations shall be effective for all Members without further formal acceptance process.

 

PART VI. TRANSITIONAL ARRANGEMENTS

Article 65. Transitional Arrangements

1. Subject to the provisions of paragraphs 2, 3 and 4, no Member shall be obliged to apply the provisions of this Agreement before the expiry of a general period of one year following the date of entry into force of the WTO Agreement.

2. A developing country Member is entitled to delay for a further period of four years the date of application, as defined in paragraph 1, of the provisions of this Agreement other than Articles 3, 4 and 5.

3. Any other Member which is in the process of transformation from a centrally-planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems in the preparation and implementation of intellectual property laws and regulations, may also benefit from a period of delay as foreseen in paragraph 2.

4. To the extent that a developing country Member is obliged by this Agreement to extend product patent protection to areas of technology not so protectable in its territory on the general date of application of this Agreement for that Member, as defined in paragraph 2, it may delay the application of the provisions on product patents of Section 5 of Part II to such areas of technology for an additional period of five years.

5. A Member availing itself of a transitional period under paragraphs 1, 2, 3 or 4 shall ensure that any changes in its laws, regulations and practice made during that period do not result in a lesser degree of consistency with the provisions of this Agreement.

 

Article 66. Least-Developed Country Members

1. In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base, such Members shall not be required to apply the provisions of this Agreement, other than Articles 3, 4 and 5, for a period of 10 years from the date of application as defined under paragraph 1 of Article 65. The Council for TRIPS shall, upon duly motivated request by a least-developed country Member, accord extensions of this period.

2. Developed country Members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country Members in order to enable them to create a sound and viable technological base.

 

Article 67. Technical Cooperation

In order to facilitate the implementation of this Agreement, developed country Members shall provide, on request and on mutually agreed terms and conditions, technical and financial cooperation in favour of developing and least-developed country Members. Such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse, and shall include support regarding the establishment or reinforcement of domestic offices and agencies relevant to these matters, including the training of personnel.

 

PART VII. INSTITUTIONAL ARRANGEMENTS; FINAL PROVISIONS

 

Article 68. Council for Trade-Related Aspects of Intellectual Property Rights

The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members’ compliance with their obligations hereunder, and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. In carrying out its functions, the Council for TRIPS may consult with and seek information from any source it deems appropriate. In consultation with WIPO, the Council shall seek to establish, within one year of its first meeting, appropriate arrangements for cooperation with bodies of that Organization.

 

Article 69. International Cooperation

Members agree to cooperate with each other with a view to eliminating international trade in goods infringing intellectual property rights. For this purpose, they shall establish and notify contact points in their administrations and be ready to exchange information on trade in infringing goods. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods.

 

Article 70. Protection of Existing Subject Matter

1. This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question.

2. Except as otherwise provided for in this Agreement, this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. In respect of this paragraph and paragraphs 3 and 4, copyright obligations with respect to existing works shall be solely determined under Article 18 of the Berne Convention (1971), and obligations with respect to the rights of producers of phonograms and performers in existing phonograms shall be determined solely under Article 18 of the Berne Convention (1971) as made applicable under paragraph 6 of Article 14 of this Agreement.

3. There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain.

4. In respect of any acts in respect of specific objects embodying protected subject matter which become infringing under the terms of legislation in conformity with this Agreement, and which were commenced, or in respect of which a significant investment was made, before the date of acceptance of the WTO Agreement by that Member, any Member may provide for a limitation of the remedies available to the right holder as to the continued performance of such acts after the date of application of this Agreement for that Member. In such cases the Member shall, however, at least provide for the payment of equitable remuneration.

5. A Member is not obliged to apply the provisions of Article 11 and of paragraph 4 of Article 14 with respect to originals or copies purchased prior to the date of application of this Agreement for that Member.

6. Members shall not be required to apply Article 31, or the requirement in paragraph 1 of Article 27 that patent rights shall be enjoyable without discrimination as to the field of technology, to use without the authorization of the right holder where authorization for such use was granted by the government before the date this Agreement became known.

7. In the case of intellectual property rights for which protection is conditional upon registration, applications for protection which are pending on the date of application of this Agreement for the Member in question shall be permitted to be amended to claim any enhanced protection provided under the provisions of this Agreement. Such amendments shall not include new matter.

8. Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall:

(a) notwithstanding the provisions of Part VI, provide as from the date entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed;

(b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; and

(c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b).

9. Where a product is the subject of a patent application in a Member in accordance with paragraph 8(a), exclusive marketing rights shall be granted, notwithstanding the provisions of Part VI, for a period of five years after obtaining marketing approval in that Member or until a product patent is granted or rejected in that Member, whichever period is shorter, provided that, subsequent to the entry into force of the WTO Agreement, a patent application has been filed and a patent granted for that product in another Member and marketing approval obtained in such other Member.

 

Article 71. Review and Amendment

1. The Council for TRIPS shall review the implementation of this Agreement after the expiration of the transitional period referred to in paragraph 2 of Article 65. The Council shall, having regard to the experience gained in its implementation, review it two years after that date, and at identical intervals thereafter. The Council may also undertake reviews in the light of any relevant new developments which might warrant modification or amendment of this Agreement.

2. Amendments merely serving the purpose of adjusting to higher levels of protection of intellectual property rights achieved, and in force, in other multilateral agreements and accepted under those agreements by all Members of the WTO may be referred to the Ministerial Conference for action in accordance with paragraph 6 of Article X of the WTO Agreement on the basis of a consensus proposal from the Council for TRIPS.

 

Article 72. Reservations

Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.

 

Article 73. Security Exceptions

Nothing in this Agreement shall be construed:

(a) to require a Member to furnish any information the disclosure of which it considers contrary to its essential security interests; or

(b) to prevent a Member from taking any action which it considers necessary for the protection of its essential security interests;

(i) relating to fissionable materials or the materials from which they are derived;

(ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

(iii) taken in time of war or other emergency in international relations; or

(c) to prevent a Member from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

() Положение о секретных изобретениях, полезных моделях и промышленных образцах КР

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Patent Law

(of December 16, 1997)

LAW OF THE KYRGYZ REPUBLIC

Patent Law

 

Title I. General Provisions

 

Article 1. Relations Governed by this Law

This Law governs the economic relations and the associated personal moral relations arising on the territory of the Kyrgyz Republic from the creation, legal protection and use of inventions, utility models and industrial designs (hereinafter referred to as “industrial property subject matter”).

 

Article 2. State Agency of Intellectual Property of the Kyrgyz Republic

The State Agency of Intellectual Property of the Kyrgyz Republic (hereinafter referred to as “Kyrgyzpatent”) shall, in accordance with this Law, receive applications for protection of industrial property subject matter, carry out the examination and official registration thereof, grant titles of protection, make official publication of the data relating to industrial property subject matter, lay down rules for the implementation of this Law and perform other functions in accordance with the ordinance concerning Kyrgyzpatent adopted by the Government of the Kyrgyz Republic.

Kyrgyzpatent shall be responsible for keeping the national patent collection and for making additions to it through acquisition and through exchange with international organizations and foreign patent offices.

In order to strengthen the activities of Kyrgyzpatent in the field of legal protection of industrial property subject matter, there shall be established at Kyrgyzpatent an Appeal Board as the compulsory first instance body for disputes relating to industrial property subject matter, that it shall hear in accordance with its competence. The procedures for hearing opposition before the Appeal Board shall be established by Kyrgyzpatent.

The activities of Kyrgyzpatent shall be financed from budget appropriations, patent fees, remuneration obtained by Kyrgyzpatent in exchange for services and documents it provides and by other extrabudgetary funds.

 

Article 3. Legal Protection of Industrial Property Subject Matter

Rights in industrial property subject matter shall be protected by this Law and shall be certified by a preliminary patent or a patent for an invention or for an industrial design or by a certificate for a utility model (hereinafter referred to as “titles of protection”), attesting to the priority date and authorship of the invention, industrial design or utility model and the exclusive right of the owner of the title of protection (hereinafter referred to as “the patent owner”) with respect to the industrial property subject matter.

A preliminary patent or certificate shall be granted after a preliminary examination.

A patent shall be granted after a substantive examination.

The scope of the legal protection afforded by a preliminary invention patent, an invention patent or a utility model certificate shall be determined by the claims and the scope of the legal protection afforded by a preliminary design patent or a design patent shall be determined by the sum of its essential features as shown in the reproductions of the article in which the design is incorporated (model) and set out in the list of essential features.

The legal protection of industrial property subject matter considered secret by the State shall be governed by the legislation of the Kyrgyz Republic.

 

Article 4. Term of Preliminary Patents, Patents and Certificates

A preliminary invention patent shall have effect for seven years as from the filing date of an application with Kyrgyzpatent.

An invention patent shall have effect for 20 years as from the filing date of an application with Kyrgyzpatent.

A utility model certificate shall have effect for five years as from the filing date of an application with Kyrgyzpatent. At the request of the owner of the certificate, its term may be extended by Kyrgyzpatent for a maximum of three years.

A preliminary design patent shall have effect for seven years as from the filing date of the application with Kyrgyzpatent.

A design patent shall have effect for 10 years as from the filing date of the application with Kyrgyzpatent. At the request of the patent owner, its term of validity may be extended by Kyrgyzpatent for a maximum of five years.

 

Title II.  Conditions of Patentability of Industrial Property Subject Matter

 

Article 5. Conditions of Patentability of Inventions

Subject matter for which a patent has been sought shall enjoy legal protection if it is new, involves an inventive step and is industrially applicable.

An invention shall be deemed new if it does not form part of the state of the art.

An invention shall be deemed to involve an inventive step if it does not derive obviously from the state of the art.

The state of the art shall consist of any kind of information that has become generally available anywhere in the world before the priority date of the invention.

When the novelty of an invention is determined, the state of the art shall also be held to include all applications filed by other persons with Kyrgyzpatent and that have not been withdrawn and whose priority date is earlier and all inventions and utility models patented in the Kyrgyz Republic.

An invention shall be deemed industrially applicable if it can be used in industry, agriculture, public health and other sectors of the economy.

Disclosure of information relating to the invention that would otherwise affect its patentability shall not do so when the information has been made available to the public not earlier than 12 months preceding the filing date or, where priority is claimed, the priority date of the application by the applicant or creator or by any other person having obtained the information directly or indirectly from them. The burden of proof of the foregoing shall be on the applicant.

The subject matter of an invention may be a device, a process, a substance, a microorganism strain or a culture of plant or animal cells, and also the use of a known device, process or strain for a new purpose, or any other new achievement in any technical or technological field.

The following shall not be recognized as inventions:

(i) scientific theories and mathematical methods;

(ii) methods of economic organization and management;

(iii) symbols, schedules and rules;

(iv) methods for performing mental acts;

(v) algorithms and computer programs as such;

(vi) projects and plans for structures and buildings and for land development;

(vii) solutions concerning solely the outward appearance of manufactured articles and intended to satisfy aesthetic requirements;

(viii) topographies of integrated circuits;

(ix) plant varieties and animal breeds;

(x) solutions that are contrary to the public interest, humanitarian principles or morality, or which are damaging to the environment.

The subject matters referred to in items (v), (viii) and (ix) of the ninth paragraph of this Article shall be protected by separate laws.

The patentability of an invention shall not be affected by the presence in that invention of algorithms and computer programs if the latter form an integral part of the invention.

 

Article 6. Conditions of Patentability of Utility Models

A utility model shall be constituted by a device.

Subject matter for which a utility model certificate is sought shall enjoy legal protection if it is new and is industrially applicable.

A utility model shall be deemed new if the sum of its essential features does not form part of the state of the art.

The state of the art shall comprise information published anywhere in the world concerning devices having the same purpose as the utility model under the application and which have become generally available before the priority date of the application, information on the use of such devices in the Kyrgyz Republic, applications for invention patents and utility models filed before that date by others in the Kyrgyz Republic, and not withdrawn, and inventions and utility models protected in the Kyrgyz Republic.

Disclosure of information relating to the utility model that would otherwise affect its patentability shall not do so where the information has been made available to the public not earlier than six months preceding the filing date or, where priority is claimed, the priority date of the application by the applicant or creator or by any other person having obtained the information directly or indirectly from them. The burden of proof of the foregoing shall be on the applicant.

A utility model shall be deemed industrially applicable if it can be used in practice.

The subject matter referred to in the ninth paragraph of Article 5 of this Law shall not be protected as utility models.

 

Article 7. Conditions of Patentability of Industrial Designs

An industrial design shall be constituted by any solution that is both artistic and technical adopted for the outward appearance of an article.

The subject matter for which a design patent is sought shall enjoy legal protection if it is new, original and industrially applicable.

An industrial design shall be deemed new if the sum of its essential features, shown in the reproductions of the article in which it is incorporated (model) and set out in the list of essential features, was not known from generally available information anywhere in the world before its priority date.

When the novelty of an industrial design is determined, due regard shall be had to earlier applications filed by other persons in the Kyrgyz Republic, and not withdrawn, and to industrial designs that have been patented in the Kyrgyz Republic.

An industrial design shall be deemed original if its essential features determine the creative nature of the specific aspects of the article in which it is incorporated.

The essential features of an industrial design shall mean those features that determine the aesthetic and/or ergonomic aspects of the outward appearance of an article, its shape and its configuration, decoration or combination of colors.

An industrial design shall be deemed industrially applicable if it can be reproduced in quantity.

Disclosure of information relating to the industrial design that would otherwise affect its patentability shall not do so where the information has been made available to the public not earlier than six months preceding the filing date or, where priority is claimed, the priority date of the application by the applicant or creator or by any other person having obtained the information from them. The burden of proof of the foregoing shall be on the applicant.

The following shall not be deemed industrial designs:

(i) solutions that are determined exclusively by the technical function of the manufactured article;

(ii) architectural works (with the exception of minor architectural forms) and industrial, hydraulic and other stationary structures;

(iii) printed matter as such;

(iv) subject matter of unstable shape such as liquids, gaseous and dry substances and the like;

(v) articles contrary to public interest, humanitarian principles or morality.

 

Title III. Owners of Rights

 

Article 8. Creators of Industrial Property Subject Matter

A natural person whose creative work has resulted in the subject matter of industrial property shall be recognized as the creator thereof.

Where industrial property subject matter is the result of the work of two or more natural persons, those persons shall all be recognized as creators. The conditions for exercising the rights belonging to the creators shall be determined by agreement between them.

Natural persons shall not be recognized as creators if they have not made a personal creative contribution to the industrial property subject matter, but have simply given the creator or creators technical, organizational or material assistance or have helped them to secure legal rights in the industrial property subject matter or in using it.

Authorship of industrial property subject matter shall be an inalienable personal right and shall enjoy protection of unlimited duration.

 

Article 9. Patent Owners

The right to obtain a title of protection shall belong:

(i) to the creator or creators of the industrial property subject matter;

(ii) to the employer in the cases provided for in the second paragraph of this Article;

(iii) to their successors in title, including persons having obtained a corresponding right by assignment.

Where an employee creates industrial property subject matter within the exercise of his duties or specific tasks entrusted to him by his employer, the right to a title of protection for such industrial property subject matter shall belong to the employer unless otherwise agreed by contract.

If, within four months of the date on which the creator has informed his employer of the industrial property subject matter that has been created, the employer has neither filed an application with Kyrgyzpatent nor has assigned his right to a title of protection to another person nor has notified the creator that he is keeping the industrial property subject matter a secret, the creator shall have the right to obtain a title of protection. In such case, the employer shall be entitled to use the industrial property subject matter in his own manufacture, subject to payment to the patent owner of compensation to be determined by contract.

Where an employee creates industrial property subject matter by means of the experience and the material, technical and other facilities belonging to his employer, but not within the exercise of his duties or specific tasks entrusted to him by his employer, the right to the title of protection for such industrial property subject matter shall belong to the employee unless otherwise agreed by contract. In such case, the employer shall have the right to use the industrial property subject matter in his own manufacture on payment to the patent owner of compensation to be determined by contract.

 

Article 10. Right of the Creator to Remuneration

Where the creator is not entitled to the grant of a title of protection, he may obtain from his employer remuneration of which the amount and terms of payment shall be determined by agreement between them.

If the parties are unable to reach agreement on the amount and terms of payment of the remuneration or the compensation, the dispute shall be heard by the courts.

In the event of failure to make timely payment of the contractual remuneration or compensation, the employer at fault shall be liable to the penalties laid down by the legislation of the Kyrgyz Republic.

The other relationships that arise from the creation by an employee of industrial property subject matter shall be governed by the legislation of the Kyrgyz Republic on service inventions, utility models and industrial designs.

 

Title IV. Exclusive Right in Industrial Property Subject Matter

 

Article 11. Rights of the Patent Owner

The patent owner shall enjoy an exclusive right in an invention or industrial design protected by a preliminary patent or by a patent or in a utility model protected by a certificate and shall have the right to prohibit others from using the subject matter concerned except where, under this Law, such use does not infringe the exclusive right of the patent owner.

Where there is more than one owner of the same title of protection, their relations with regard to the use of the industrial property subject matter under that title of protection shall be determined by common accord. In the absence of agreement, each owner may use the protected subject matter at his own discretion, but may not grant an exclusive license in that subject matter or assign the title of protection to another person without the consent of the other owners.

If the patent owners fail to reach an agreement on the granting of an exclusive license or on the assignment of the title of protection, the courts may be requested to take a decision on the sharing of the rights in the industrial property subject matter.

The manufacture, application, import, offering for sale, sale or any other form of marketing, or storage for such purpose, of the article incorporating the invention or industrial design protected by a preliminary patent or a patent, or a utility model protected by a certificate, as also the use of a process protected by a preliminary patent or a patent shall be deemed to constitute use of the industrial property subject matter.

An article shall be deemed to contain an invention protected by a preliminary patent or a patent or a utility model protected by a certificate if it incorporates each of the features of the invention or utility model contained in an independent claim or an equivalent feature known as such in a given technical field at the date on which use began. A process protected by a preliminary patent or a patent shall be deemed to have been applied if it utilizes each of the features of the invention contained in an independent claim or an equivalent feature known as such in a given technical field at the date on which use began.

An article is deemed to contain an industrial design protected by a preliminary patent or a patent if it incorporates all the essential features represented in reproductions of the article (model) and set out in the list of essential features.

The marketing, or storage for such purpose, of a device whose operation or use, in accordance with its intended purpose, automatically applies the process concerned shall also constitute use of a process protected by a preliminary patent or a patent.

The marketing, or storage for such purpose, of a product manufactured directly by means of a process for obtaining a product protected by a preliminary patent or a patent shall likewise constitute use of the protected process. A new product shall be deemed to have been manufactured by the patented process unless evidence is provided to the contrary.

The manufacture, experimentation and testing of a product prototype shall not be deemed to constitute use of industrial property subject matter.

The patent owner may assign his title of protection to any natural or legal person. The contract of assignment of the title of protection shall be registered with Kyrgyzpatent and published in the Official Bulletin of Kyrgyzpatent. Failing registration, it shall be deemed null and void.

A title of protection and the right to such title shall be transferable by succession.

 

Article 12. Obligations of the Patent Owner and Compulsory Licensing

Where the patent owner or any person to whom he has assigned rights in the patent has failed to use or has insufficiently used industrial property subject matter within three years as from the date of grant of the title of protection, with the result of making the offer of the corresponding products or services on the market insufficient, any person wishing to use the protected industrial property subject matter and who is in a position to do so may, in the event of refusal by the patent owner to conclude a licensing contract under conditions corresponding to established practice, institute proceedings for obtaining a compulsory license to use that subject matter.

If the patent owner is unable to show legitimate reasons for failure to use or insufficient use of the industrial property subject matter, the court shall grant the corresponding license and shall set the limits on the use of the subject matter and also the amount, dates and procedure for payment of royalties. The amount of the royalties shall not be less than the value of a license determined in accordance with established practice.

If the patent owner is unable to use his invention without infringing the rights of the owner of another preliminary patent, patent or utility model certificate who has refused to conclude a licensing contract under conditions corresponding to established practice, he may institute proceedings for obtaining a compulsory license to use the invention or utility model on condition that his invention represents a technical solution of significant economic importance in relation to the invention or utility model for which a title of protection belongs to the other party.

When ordering the grant of the corresponding license, the court shall set the limits on the use of the invention or utility model whose title of protection belongs to the other party in such a way as to permit use of the invention whose patent belongs to the person seeking to obtain a compulsory license, as also the amount, dates and procedure for payment of royalties. The amount of the royalties shall not be less than the value of a license determined in accordance with established practice.

The Government of the Kyrgyz Republic may, in exceptional circumstances (natural disasters, catastrophes, serious accidents) or for reasons of national security, order the grant of a compulsory license on payment to the patent owner of appropriate compensation; the scope and duration of use of the patented industrial property subject matter shall be limited to those purposes for which it has been authorized. Disputes deriving from such use shall be heard by the courts.

A compulsory license shall in all cases be a non-exclusive license and may not be assigned to other persons.

 

Article 13. Acts Not Infringing the Exclusive Right of the Patent Owner

The following shall not be deemed to infringe the exclusive right of a patent owner:

(i) the use of devices incorporating industrial property subject matter protected by preliminary patents, patents or certificates in the construction or operation of the means of transport (by sea, river, air, land or in space) of other countries where the devices incorporating protected subject matter enter temporarily or accidentally the territory of the Kyrgyz Republic and are used there for the needs of the means of transport. Such act shall not be deemed to infringe the exclusive right of the patent owner if the means of transport belong to natural or legal persons of countries that afford the same rights to owners of means of transport of the Kyrgyz Republic;

(ii) the use of a device incorporating industrial property subject matter for the purposes of research or scientific experimentation;

(iii) the use of such devices in exceptional circumstances (natural disasters, catastrophes, serious accidents) against payment to the patent owner of equitable compensation;

(iv) the use of devices incorporating industrial property subject matter protected by preliminary patents, patents or certificates if such devices have been lawfully marketed in accordance with rights granted by the patent owner. A person who acquires, with the authorization of the patent owner, a device incorporating industrial property subject matter that is patented or has been manufactured by means of a patented process shall be entitled to use or dispose of such device without having to request additional authorization, unless agreed otherwise.

 

Article 14. Right of Prior User

Any natural or legal person who before the priority date of an invention, utility model or industrial design has conceived and used on the territory of the Kyrgyz Republic, independently of the creator, a solution that is identical, or has made the necessary preparations for such use, shall maintain the right to continue using that solution free of charge provided that he does not extend its scope.

The right of prior user may only be transferred to another natural or legal person together with the production unit in which the identical solution has been used or in which the necessary preparations for such use have been made.

 

Article 15. Grant of the Right to Use Industrial Property Subject Matter

Any person not being the patent owner shall have the right to use the industrial property subject matter protected by a title of protection only with the authorization of the patent owner given on the basis of a licensing contract.

Under a licensing contract, the patent owner (licensor) grants, within the limits laid down in the contract, the right to use the protected subject matter to another person (licensee) and the latter undertakes to pay to the licensor the amounts and perform other acts laid down in the contract.

An exclusive licensing contract grants the licensee the exclusive right to use the industrial property subject matter within the limits laid down in the contract, beyond which the licensor maintains his right of use.

A non-exclusive license allows the licensor, while granting the licensee the right to use the industrial property subject matter, to maintain all the rights deriving from the patent, including the right to grant licenses to other persons.

A license may contain, on the basis of a common agreement between the licensor and the licensee, provisions that differ from those contained in this Article.

The licensing contract must be registered with Kyrgyzpatent, failing which it shall be deemed null and void. The licensing contract shall enter into force on the day it is registered at Kyrgyzpatent and shall be published in the Official Bulletin of Kyrgyzpatent.

The owner of a patent may file with Kyrgyzpatent a declaration to the effect that he undertakes to grant the right to use the industrial property subject matter to any interested party (open license) under the conditions laid down in a contract. In such case, the patent maintenance fee shall be reduced by 50% as from the year following the year of publication of the particulars of the declaration by Kyrgyzpatent.

The declaration by the patent owner granting the right to an open license may not be withdrawn.

Any disputes arising from refusal to conclude a contract or from the clauses of the contract shall be heard by the courts.

 

Article 16. Infringement of the Title of Protection

Any use made of an invention or industrial design protected by a preliminary patent or a patent or of a utility model protected by a certificate in a manner contrary to this Law shall be deemed to constitute an infringement of the title of protection.

The owner of a patent shall be entitled to require:

– that the infringement of the title of protection cease;

– compensation from the infringer for the prejudice suffered, including loss of earnings, and damages for the moral prejudice;

– surrender of the profits made by the infringer in lieu of compensation for the prejudice suffered;

– payment by the infringer of compensation of between 10 and 50,000 times the minimum salary laid down by the legislation of the Kyrgyz Republic, the amount of which shall be determined by the courts in lieu of compensation for the prejudice suffered or of surrender of profits;

– confiscation for his benefit of the products marketed or stored for such purpose and deemed to infringe the title of protection together with the means specifically intended for the infringement;

– publication of the court decision in order to restore his commercial reputation.

Unless otherwise agreed in the licensing contract, the holder of an exclusive license or, where the licensing contract so provides, the holder of a non-exclusive license may also institute proceedings against an infringer of the title of protection.

 

Title V. Grant of the Title of Protection

 

Article 17. Filing an Application for a Title of Protection

An application for a title of protection shall be filed with Kyrgyzpatent by the person entitled to obtain a title of protection in accordance with Article 9 of this Law (hereinafter referred to as “the applicant”).

The request for grant of a title of protection shall be written in the Kyrgyz language or the Russian language. The claims with respect to the invention or utility model, the list of essential features of the industrial design, the designation of the industrial property subject matter and the business name (name) of the applicant and the patent owner shall be communicated in Kyrgyz and in Russian. If other elements of the application, or elements submitted during examination of the application, are written in another language, a translation of those elements into Kyrgyz or into Russian shall be attached to the application. The applicant shall be required to submit a translation into Kyrgyz or into Russian within three months of the filing date of the application with Kyrgyzpatent.

At the request of the applicant, the time limit for submitting the aforementioned elements may be extended, or restored if it has not been complied with, provided that the applicant has good grounds and that he pays the corresponding fee.

An application may be filed through a patent agent registered with Kyrgyzpatent. Natural persons resident outside the Kyrgyz Republic or foreign legal persons, and also their patent agents, shall be required to act through patent agents registered with Kyrgyzpatent for the grant of titles of protection and for obtaining protection for industrial property subject matter.

The powers of the patent agent shall be certified in a power of attorney issued to him by the person in whose name the patent is sought.

The requirements of the qualifying examination and the registration to which patent agents shall be submitted shall be determined and applied by Kyrgyzpatent.

 

Article 18. Application for a Preliminary Invention Patent or an Invention Patent

An application for a preliminary invention patent or for an invention patent (hereinafter referred to as “the invention application”) shall relate to one invention only or to a group of inventions so linked as to satisfy the requirement of unity of invention.

The invention application shall contain:

(i) a request for the grant of a preliminary patent or a patent, stating the names of the creator or creators and the person or persons in whose name a preliminary patent or a patent is sought, and the address of their residence or place of business;

(ii) a description, disclosing the invention in a manner sufficiently complete for it to be carried out by a person skilled in the art;

(iii) one or more claims defining the subject matter of the invention and entirely supported by the description;

(iv) any drawings or other elements if they are necessary for the comprehension of the subject matter of the invention;

(v) an abstract.

The invention application shall be accompanied by proof of payment of the prescribed filing fee or of circumstances giving entitlement to exemption from that fee or a reduction in the fee, which may be submitted when filing the application or within two months thereafter, against payment of an additional fee.

If the above mentioned proof is not submitted within the prescribed time limit, the application shall be deemed withdrawn.

The filing date of the application with Kyrgyzpatent shall be determined on the basis of the date of receipt of the elements necessary to establish priority in accordance with the conditions laid down in the first paragraph of Article 21 of this Law or, if the above mentioned elements are not all submitted at the same time, on the basis of the date of receipt of the last element submitted.

Any other conditions to be met by the elements of the invention application shall be determined by Kyrgyzpatent.

 

Article 19. Application for a Utility Model Certificate

An application for a utility model certificate shall relate to one utility model or to a group of utility models so linked as to satisfy the requirement of unity of the utility model.

The utility model application shall contain:

(i) a request for the grant of a certificate, stating the names of the creator or creators of the utility model and the person or persons in whose name the certificate is sought, and the address of their residence or place of business;

(ii) a description, disclosing the utility model in a manner sufficiently complete for it to be carried out;

(iii) one or more claims entirely supported by the description;

(iv) any drawings required for the comprehension of the subject matter of the utility model;

(v) an abstract.

The utility model application shall be accompanied by proof of payment of the prescribed filing fee or of circumstances giving entitlement to exemption from that fee or to a reduction in the fee, which may be submitted when filing the application or within two months thereafter, against payment of an additional fee.

If the above mentioned proof is not submitted within the prescribed time limit, the application shall be deemed withdrawn.

The filing date of the application with Kyrgyzpatent shall be determined on the basis of the date of receipt of the elements necessary to establish priority in accordance with the conditions laid down in the first paragraph of Article 21 of this Law or, if the above mentioned elements are not all submitted at the same time, on the basis of the date of receipt of the last element submitted.

Any other conditions to be met by the elements of a utility model application shall be determined by Kyrgyzpatent.

 

Article 20. Application for a Preliminary Design Patent or a Design Patent

An application for a preliminary design patent or a design patent (hereinafter referred to as “the design application”) shall relate to one industrial design only or a group of industrial designs so linked as to satisfy the requirement of unity of industrial design.

The design application shall contain:

(i) a request for the grant of a preliminary patent or a patent, stating the names of the creator or creators of the industrial design and the person or persons in whose name the preliminary patent or the patent is sought, and the address of their residence or place of business;

(ii) a set of reproductions of the manufactured article (model), providing a full and detailed view of its outward appearance;

(iii) an overall drawing of the manufactured article, a representation of its functional features or an assembly diagram where necessary for the disclosure of the subject matter of the industrial design;

(iv) a description of the industrial design;

(v) a list of its essential features.

The design application shall be accompanied by proof of payment of the prescribed deposit filing fee or of circumstances giving entitlement to exemption from that fee or to a reduction in the fee, which may be submitted when filing the application or within two months thereafter, on payment of an additional fee.

If the above mentioned proof is not submitted within the prescribed time limit, the application shall be deemed withdrawn.

The filing date of the application with Kyrgyzpatent shall be determined on the basis of the date of receipt of the elements necessary to establish priority in accordance with the conditions laid down in the first paragraph of Article 21 of this Law or, if the above mentioned elements are not all submitted at the same time, on the basis of the date of receipt of the last element submitted.

Any other conditions to be met by the elements of the design application shall be determined by Kyrgyzpatent.

 

Article 21. Priority of an Invention, Utility Model or Industrial Design

The priority of an invention or a utility model shall be determined on the basis of the date of filing with Kyrgyzpatent of an application containing a request for grant of a preliminary patent, a patent or a certificate, a description, one or more claims and any drawings referred to in the description.

The priority of an industrial design shall be determined on the basis of the date of filing with Kyrgyzpatent of an application containing a request for grant of a patent or preliminary patent, a set of reproductions, a description and a list of the essential features of the industrial design.

Priority may be determined on the basis of the filing date of a first application in a State party to the Paris Convention for the Protection of Industrial Property (Convention priority) if Kyrgyzpatent receives the application within a period, computed as from that date, of 12 months in the case of an invention or a utility model or of six months in the case of an industrial design.

If it has not been possible, for reasons beyond the control of the applicant, to file the application claiming Convention priority within the above mentioned period, that period may be extended for a maximum of two months.

An applicant wishing to avail himself of Convention priority shall make a declaration to that effect when filing the application or within two months following the filing date of the application with Kyrgyzpatent and shall attach thereto a copy of the first application or shall furnish it within three months at most following receipt of the application by Kyrgyzpatent.

Priority may be determined on the basis of the filing date of additional elements if the applicant has submitted them in the form of a separate application filed prior to expiry of a period of three months as from the date on which he received a notification from Kyrgyzpatent to the effect that the additional elements may not be taken into account by reason of the fact that they modify the subject matter of the solution to which the application refers.

Priority may be determined on the basis of the date of filing with Kyrgyzpatent of an earlier application filed by the same applicant, disclosing the invention, utility model or industrial design concerned, on condition that the application claiming such priority is filed no later than 12 months after the filing date of the earlier application in the case of an invention or no later than six months after the filing date of the earlier application in the case of a utility model or an industrial design. In such case, the earlier application shall be deemed withdrawn.

Priority may be determined on the basis of more than one earlier application provided that each such application meets the aforementioned conditions.

Priority may not be determined on the basis of the filing date of an application in which an earlier priority has already been claimed.

The priority of an invention, utility model or industrial design based on a divisional application shall be determined on the basis of the date of filing with Kyrgyzpatent of the initial application disclosing the industrial property subject matter concerned, provided that the divisional application is received by Kyrgyzpatent before a final decision of refusal has been taken or, if a title of protection has been granted, before entry of the industrial property subject matter in the official register.

Where it is ascertained during the examination that identical industrial property subject matter has the same priority date, the application that is proven to have been sent first to Kyrgyzpatent or, if the date of despatch is the same, the application whose registration number at Kyrgyzpatent is earlier shall be considered for the grant of a title of protection.

 

Article 22. Correction of Elements in the Application at the Initiative of the Applicant

Within two months of the filing date of the application, the applicant shall be entitled to correct or amend elements in the application provided that the subject matter of the invention, utility model or industrial design concerned is not modified.

In the case of an application relating to industrial property subject matter and subject to payment of a fee, the applicant may file corrections or amendments even after expiry of the above mentioned time limit, but not once a decision to grant a title of protection has been taken.

 

Article 23. Formal Examination and Preliminary Examination of Invention Applications

On expiry of a period of two months as from the filing date of the application, Kyrgyzpatent shall carry out a formal examination of the application.

At the request of the applicant, the formal examination may be initiated prior to expiry of that time limit. In such case, the applicant shall lose the right provided in the first paragraph of Article 22 of this Law as from the filing date of the request.

The formal examination of the application shall check whether the elements required by Article 18 of this Law are all present and that they comply with the requirements and shall examine whether the solution claimed in the application relates to industrial property subject matter eligible for legal protection.

If the application meets the requirements of the formal examination, the applicant shall receive a notification that his application will be taken into consideration.

If the formal examination ascertains that the application concerns a solution that does not relate to subject matter eligible for legal protection, the applicant shall receive a notification informing him that his application cannot be taken into consideration.

When the formal examination has been completed, the invention application shall be subjected within 12 months to a preliminary examination.

The preliminary examination shall verify, on the basis of the elements of the application submitted by the applicant, the titles of protection already granted in the Kyrgyz Republic and applications not withdrawn having an earlier priority date, whether the invention under the application meets the patentability criteria.

If the applicant files additional elements in accordance with Article 22 of this Law, the preliminary examination shall check whether those elements modify the subject matter of the invention under the application.

The additional elements shall be deemed to modify the subject matter of the invention under the application if they contain features that were not contained in the application as initially filed and that should be included in the claims. Additional elements modifying the subject matter of the invention under the application shall not be taken into consideration in the examination and the applicant may submit them as a separate application.

If the application does not comply with the requirement of unity, the applicant shall be invited to state, within a period of two months, which proposal is to be taken into consideration and to make the corresponding amendments to the elements in the application.

The other solutions contained in the initial application may be submitted as divisional applications.

If the applicant fails, within two months following the date of receipt of the notification of failure to comply with the unity of invention requirement, to state which proposal is to be taken into consideration and to submit documents containing the amendments, the examination shall be carried out only in respect of the proposal that is mentioned first in the claims.

Where the documents contained in an application do not comply with the requirements, the applicant shall be invited to submit within two months of the date of the invitation the corrected or missing documents.

If, within the prescribed time limit, the applicant fails to furnish the documents referred to in the invitation and has not submitted a request for extension of the period, the application shall be deemed withdrawn.

Where the result of the preliminary examination of the application is favorable, a decision shall be taken to grant a preliminary patent at the liability of the applicant.

If the decision to grant a preliminary patent is taken at the request of the applicant prior to the expiry of a period of 12 months as from the filing date of the application with Kyrgyzpatent and if Kyrgyzpatent receives within that period of time an identical application claiming earlier priority, the decision to grant a patent shall be deemed cancelled.

If Kyrgyzpatent receives a request for substantive examination at the same time as the constituent elements of the application or before expiry of a period of two months after the decision to grant a preliminary patent, no preliminary patent shall be granted on the applicant’s request.

If the result of the preliminary examination shows that the application concerns a proposal that is not patentable under the provisions of this Article, a decision shall be taken to refuse the grant of a preliminary patent.

The applicant shall be entitled to lodge an appeal against such decision with the Appeal Board within a period of two months as from the date of receipt of the decision. The appeal shall be heard by the Appeal Board within two months as from the date of lodging.

In the event of disagreement with the decision given by the Appeal Board, the applicant may, within six months of the date of receipt, institute legal proceedings.

Article 24. Substantive Examination of Invention Applications

On a request submitted by the applicant or by another person during the five years following the filing date of the application, Kyrgyzpatent shall carry out, within 24 months, a substantive scientific and technical examination of all applications for which the preliminary examination has given a favorable result. Kyrgyzpatent shall notify the applicant of any request by another person.

During the substantive examination, Kyrgyzpatent shall have the right to invite applicants to furnish any additional elements without which examination is not possible, including amended claims.

The additional elements requested by the examiner shall be submitted within two months as from the date of receipt by the applicant of the invitation and may not modify the subject matter of the invention.

The procedure set out in Article 23 of this Law shall apply to additional elements that modify the subject matter of the invention.

If Kyrgyzpatent ascertains as a result of the substantive scientific and technical examination of the application that, taking into account the extent of the legal protection claimed by the applicant, the proposal contained in the application meets the patentability criteria set out in Article 5 of this Law, it shall take a decision to grant a patent containing the claims proposed and negotiated with the applicant.

If Kyrgyzpatent ascertains that, taking into account the extent of legal protection claimed by the applicant, the proposal contained in the application does not satisfy the patentability criteria, it shall take a decision to refuse the grant of a patent.

If a decision is taken to refuse grant of a patent, the applicant shall be entitled to lodge an appeal against such decision with the Appeal Board within a period of three months as from the date of receipt of the decision. The appeal shall be heard by the Appeal Board within four months as from the date of its lodging.

If the applicant is not in agreement with the decision given by the Appeal Board, he may, within six months as from the date of receipt, institute legal proceedings.

The applicant shall be entitled to inspect all elements referred to in the examiner’s decision or in the search report. A copy of the patent documents requested by the applicant shall be sent by Kyrgyzpatent within one month of the date on which it receives the request for copies from the applicant.

With the exception of the time limits laid down in the twentieth paragraph of Article 23 of this Law and in the first and eighth paragraphs of this Article, an applicant who has failed to comply with the time limits laid down in Article 23 of this Law and in this Article may have his rights restored by Kyrgyzpatent if he can show good grounds and pays the prescribed fee.

A request for restoral of a right linked to a time limit may be submitted by the applicant 12 months at the latest after the expiry of the time limit concerned.

 

Article 25. Examination of Utility Model Applications

Examination of an application for a utility model certificate shall consist of a formal examination and a preliminary examination.

The provisions of Article 23 of this Law shall apply to the examination of utility model applications. If it is ascertained as a result of the examination that the application concerns a proposal relating to patentable subject matter and if the elements of the application satisfy the requirements, a decision to issue a certificate shall be taken.

 

Article 26. Conversion of Applications

An applicant shall have the faculty of converting his invention application to a utility model application by filing a request before the publication of data concerning a preliminary patent or an invention. A utility model application may be converted to an invention application before a decision is taken to issue a certificate.

Converted applications shall maintain the priority date of the initial application.

Conversion of applications shall be subject to payment of the corresponding fee.

 

Article 27. Examination of Design Applications

Kyrgyzpatent shall carry out a formal examination, a preliminary examination and a substantive examination of design applications.

The provisions in Article 23 of this Law shall apply to the formal examination and the preliminary examination of design applications.

The provisions of Article 24 of this Law shall apply to the substantive examination of the applications.

 

Article 28. Registration of Industrial Property Subject Matter

If Kyrgyzpatent decides to grant a title of protection and if the prescribed fee for registration and grant of a title of protection has been paid, it shall enter an invention in the official register of inventions of the Kyrgyz Republic, a utility model in the official register of utility models of the Kyrgyz Republic or an industrial design in the official register of industrial designs of the Kyrgyz Republic.

Proof of payment of the fee prescribed for registration and grant of a title of protection shall be submitted within two months as from the date on which the applicant has received the decision to grant a title of protection or within three months of expiry of the aforementioned two month time limit on payment of an additional fee.

If proof of payment of the fee prescribed for registration and grant of a title of protection is not submitted in accordance with the prescribed procedure, the industrial property subject matter shall not be registered, a title of protection shall not be granted and the corresponding application shall be deemed withdrawn.

 

Article 29. Publication of Data on the Registration of Industrial Property Subject Matter

Kyrgyzpatent shall publish in its Official Bulletin data concerning the registration of industrial property subject matter within six months from the date of registration. The complete list of data to be published shall be determined by Kyrgyzpatent.

All persons shall be entitled to inspect the constituent elements of applications after publication of the data on the registration of industrial property subject matter.

 

Article 30. Grant of Titles of Protection

Kyrgyzpatent shall grant a title of protection within three months of the date of official publication of the data on registration in the Official Bulletin.

The title of protection shall be granted on behalf of the Kyrgyz Republic and shall be signed by the Director of Kyrgyzpatent.

If a preliminary patent, a patent or a certificate is sought in the name of more than one person, one title of protection only shall be granted to them.

Where the creator of the industrial property subject matter is not the owner of the patent, Kyrgyzpatent shall grant him a certificate attesting to his capacity as creator.

The presentation of the above mentioned titles of protection or certificates and the list of data to be shown on them shall be determined by Kyrgyzpatent.

At the request of the patent owner and of the creator, Kyrgyzpatent shall correct obvious and clerical errors in granted titles of protection or certificates.

 

Title VI. Expiry of Titles of Protection

 

Article 31. Opposition to Titles of Protection

Throughout its term of validity, a title of protection may be cancelled in whole or in part as a result of opposition to grant if:

(i) the protected solution does not meet the patentability requirements set out in this Law;

(ii) the claims of the invention patent or the utility model certificate or the list of essential features of an industrial design contain characteristics that were not contained in the application as initially filed;

(iii) the preliminary patent, patent or certificate contains an incorrect statement of the creators or of the owners.

Any person filing an opposition shall be required to give reasons and also to furnish proof of payment of the fee.

Opposition to grant of a title of protection filed on the grounds referred to in items (i) and (ii) of this Article shall be heard by the Appeal Board within six months following the date of receipt and shall be brought to the attention of the patent owner.

The person filing opposition and the patent owner may participate in the hearing. The Appeal Board shall limit its examination to the grounds set out in the opposition to grant of the patent.

In the event of disagreement with the decision taken by the Appeal Board on an opposition filed against the grant of a title of protection, each party may, within six months as from the date of the decision, institute legal proceedings.

 

Article 32. Premature Expiry of Titles of Protection

The validity of titles of protection shall expire prematurely:

(i) in the event of total cancellation of a title of protection under Article 31 of this Law;

(ii) at the request of the patent owner submitted to Kyrgyzpatent, provided that renunciation does not prejudice third party interests;

(iii) in the event of failure to pay the maintenance fee for the title of protection within the prescribed time limits;

(iv) in the event of annulment of the decision to grant a preliminary patent in accordance with the sixteenth paragraph of Article 23 of this Law.

Kyrgyzpatent shall publish the data of premature expiry of validity of a title of protection in its Official Bulletin.

 

Title VII. Rights and Privileges of Creators and Patent Owners

 

Article 33. Rights and Privileges of Creators

A creator shall have the right to give to the industrial property subject matter his name or a special title and may submit a request to that end at any time during examination of the application.

Creators of the most significant and the most widely used inventions may be nominated for the award of the honorary title of “Meritorious Inventor of the Kyrgyz Republic”.

 

Article 34. State Incentives for the Creation and Use of Industrial Property Subject Matter

In order to promote scientific and technical progress, to enhance the intellectual potential of the Kyrgyz Republic, to contribute to the development of technical and artistic creation and to encourage the creation and use of industrial property subject matter, there shall be set up at Kyrgyzpatent a State Fund for Intellectual Property of the Kyrgyz Republic (hereinafter referred to as “the State Fund”).

The State Fund may acquire, on behalf of the State, the rights of a patent owner in patented industrial property subject matter in order to develop its use in the public interest.

The State Fund shall carry out its activities in accordance with its Regulations, adopted by Kyrgyzpatent.

The finances of the State Fund shall be constituted by appropriations from the budget of the Kyrgyz Republic, a share of the fees and patent royalties, resources from the activities of the Fund and by other revenue.

The State shall grant tax benefits and other rights and privileges in accordance with the legislation of the Kyrgyz Republic to creators and to economic agents who use industrial property subject matter.

 

Title VIII. Defense of the Rights of Patent Owners and Creators

 

Article 35. Hearing of Disputes by the Courts

The procedure for hearing disputes arising from the application of this Law shall be laid down in the legislation of the Kyrgyz Republic.

The courts shall be competent to hear disputes relating to:

(i) authorship of the industrial property subject matter;

(ii) grant of the title of protection;

(iii) identification of the patent owner;

(iv) grant of a compulsory license;

(v) infringement of the exclusive right to use the protected industrial property subject matter and of other economic rights of the patent owner;

(vi) conclusion and execution of licensing contracts for the use of the protected industrial property subject matter;

(vii) right of prior user;

(viii) remuneration to be paid by an employer to the creators in accordance with the contracts referred to in the first paragraph of Article 10 of this Law;

(ix) other matters related to the protection of the rights.

 

Article 36. Liability for Infringement of Creators’ Rights

Any person who usurps the capacity of creator, acquires the status of joint creator by coercion or without authorization discloses information on industrial property subject matter shall be liable under the legislation of the Kyrgyz Republic.

 

Title IX. Final Provisions

 

Article 37. Patent Fees

The filing of an application for a title of protection for industrial property subject matter, the examination and grant of a title of protection, its maintenance, the extension of the term of validity and the performance of any other legal acts shall be subject to payment of fees. The list of acts whose performance is subject to the payment of fees, the amount of such fees and the time limits for payment, together with the conditions for exemption, reduction or reimbursement shall be laid down by the Government of the Kyrgyz Republic.

Fees shall be paid to Kyrgyzpatent by the applicant or the patent owner or, with their agreement, by any natural or legal person.

Kyrgyzpatent shall devote all the resources constituted by the fees, including those in foreign currency, and by the remuneration it charges in return for services and documents it furnishes to the acquisition of technical equipment, the development and operation of automatic systems, the extension of the collection of patent documents and to the training of staff and staff incentives.

 

Article 38. Patenting of Industrial Property Subject Matter Abroad

The filing abroad of an application for a patent for industrial property subject matter created in the Kyrgyz Republic shall be made no earlier than three months after the filing of the corresponding application with Kyrgyzpatent.

Where necessary, Kyrgyzpatent may authorize the filing of an application for industrial property subject matter abroad prior to expiry of the above mentioned time limit once it has verified, in accordance with the procedure it shall itself establish, whether the application contains information that constitutes a State secret.

If the procedure laid down in this Article is not complied with when filing an application relating to industrial property subject matter created in the Kyrgyz Republic abroad or with an international organization, no title of protection shall be granted for such industrial property subject matter in the Kyrgyz Republic.

 

Article 39. Rights of Foreign Natural and Legal Persons

In accordance with the international treaties to which the Kyrgyz Republic is party or on the basis of reciprocity, foreign natural and legal persons shall enjoy the rights provided by this Law and by other statutory acts relating to the legal protection of industrial property subject matter on the same footing as natural and legal persons of the Kyrgyz Republic.

Stateless persons residing in the Kyrgyz Republic shall enjoy the rights provided by this Law and other legislative texts relating to legal protection of industrial property subject matter on the same footing as natural and legal persons of the Kyrgyz Republic except as otherwise provided by this Law or by another legislative text in force in the Kyrgyz Republic.

 

Article 40. International Treaties

Where an international treaty to which the Kyrgyz Republic is party contains provisions that differ from those set out in this Law, the provisions of such international treaty shall apply.

 

Article 41. Entry into Force of this Law

The Patent Law of the Kyrgyz Republic shall enter into force on the day of its publication.

Eurasian patent Convention

Notice: Kyrgyz Republic was accede to Eurasian patent Convention of September 27, 1995

Moscow, on September 9, 1994

 

EURASIAN PATENT CONVENTION


PART I. EURASIAN PATENT SYSTEM

PART II. EURASIAN PATENT ORGANIZATION

PART III. SUBSTANTIVE NORMS OF PATENT LAW

PART IV. PROCEDURAL NORMS OF PATENT LAW

PART V. APPLICATION OF PATENT COOPERATION TREATY (PCT)

PART VI. TRANSITIONAL PROVISIONS

PART VII. MISCELLANEOUS

PART VIII. INFORMATIONAL SERVICES

PART IX. FINAL PROVISIONS

Officially certified text

 

Member states to this Convention (hereinafter referred to as Acceding states) on behalf of the Governments,

Guided by the willingness to strengthen cooperation in the field of inventions,

Seeking to create interstate system of having such protection granted on the basis of the uniform patent effective on the territory of all Acceding states,

Willing with this purpose to sign the Convention which constitutes a special agreement in accordance with Art. 19 of the Paris Convention on protection of industrial property of March 20, 1883 and the agreement on regional patent in accordance with Art. 45 (1) of the Patent Cooperation Treaty of June 19, 1970

Have agreed on following:

 

PART I. EURASIAN PATENT SYSTEM

Article 1. Foundation of Eurasian Patent System

(1) Acceding states preserving full sovereignty in part of development of their national systems of invention protection hereby shall found the Eurasian patent system.

(2) Neither provision of this Convention must be understood as limitation of rights provided by the Paris Convention on protection of industrial property, of any citizen of the country, member to Paris Convention or of the person permanently living in this country.

 

PART II. EURASIAN PATENT ORGANIZATION

Article 2. Foundation of Eurasian patent organization

(1) For the performance of administrative tasks connected with the functioning of Eurasian patent system and issuance of Eurasian patents, Eurasian patent organization shall be founded (hereinafter referred to as the Organization).

(2) All Acceding states shall be the members of the Organization.

(3) Administrative Board and Eurasian patent agency (hereinafter referred to as Eurasian agency) shall be the bodies of the Organization.

(4) Eurasian agency shall be headed by the President who shall be the supreme official of the Organization and shall represent the Organization.

(5) The Organization is intergovernmental organization which have the status of the legal person. Organization shall have in each Contracting state the legal capacity which is recognized after the legal entities in accordance with the national legislation of the given state. Organization may acquire and dispose of the movable and immovable property and protect its rights in front of the court. The location of the headquarters of Organization shall be in Moscow, Russian Federation.

(6) Russian shall be official language of Organization.

(7) Organization, authorized representatives of Acceding states and their deputies, employees of the Eurasian agency and other persons involved in the decision of the tasks of the Organization, shall have respective rights, privileges and immunities which are provided by such state to any other international organization and its employees on the territory of each of Acceding states, and on the territory of the Russian Federation are regulated by special agreement on headquarters of the Organization entered into by the Organization and the Government of the Russian Federation.

 

Article 3. Administrative Board

(1) Each of the Acceding states shall be represented in the Administrative Board. Each Contracting state shall have one vote in the Administrative Board. Quorum shall constitute 2/3 of the number of Acceding states. The decisions shall be adopted on the basis of consensus or if the consensus may not be achieved, by the simple majority of participating in voting representatives of Acceding states, except for the cases, when unanimity or majority of 2/3 of votes is provided by this Convention.

(2) Administrative Board shall be summoned for the regular meeting in each calendar year and for extraordinary meeting by the initiative of at least three Acceding states, Chairman of the Administrative Board or the President of Eurasian agency. Meetings shall be convoked by the President of Eurasian agency.

(3) Administrative Board shall:

1) approve its Procedural Rules;

2) elect the Chairman of the Administrative Board for two years subject to extension;

3) appoint the President of Eurasian agency for six years period subject to extension; terms of appointment shall be regulated in the contract between the Organization and future President;

4) recommend the President of Eurasian agency with respect to appointment of Vice Presidents of Eurasian agency by the President;

5) approve agreement on headquarters of the Organization entered into by the Organization and the Government of Russian Federation;

6) approve agreements entered into by the Organization and states and international organizations;

7) endorse by the majority of 2/3 of votes the Patent Instruction, Financial Instruction and Administrative Instruction;

8) approve by the majority of 2/3 votes annual budget, examine annual report and approve annual accounts of the Organization;

9) perform other actions directed to decision of tasks of the Organization.

(4) World Intellectual Property Organization (hereinafter referred to as WIPO) shall participate in the meetings of the Administrative Board with the right of consultative vote in accordance with the provisions of the agreement entered into by the Organization and WIPO.

 

Article 4. Eurasian Agency

(1) Eurasian agency shall perform all administrative functions of the Organization. It shall be the Secretariat of the Organization.

(2) The President of Eurasian agency shall define its structure and appoint the staff. He may participate in all meetings of the Administrative Board.

(3) Each of the Acceding states shall have its quota in the staff of the Eurasian agency which is defined by the Administrative instruction.

(4) Eurasian agency shall be located in Moscow, Russian Federation.

 

Article 5. Finance

(1) Organization is self-financing in the meaning that its expenses are covered by the fees and other revenues received by it. Neither contracting state may be obligated to pay fees to the Organization.

(2) Budget of the Organization shall be formed from the following sources:

1) gains from fees and payments for services rendered by the Eurasian agency;

2) gains from publishing activity of the Eurasian agency;

3) gifts, bequeathed moneys and subsidies transferred to the Organization;

4) rent, interests and other revenues of the Organization.

(3) Exceeded amount of income of Organization over expenses shall be used for the development of Eurasian agency.

(4) The agreement on headquarters of the Organization mentioned in Article 3(3)(5), must provide that in cases when financial means of the Organization are insufficient for its activity, the Russian Federation shall provide the Organization with advances. The size of these advances and terms on which they are provided in each case shall be the subject of separate agreements between the Organization and the Government of Russian Federation.

 

PART III. SUBSTANTIVE NORMS OF PATENT LAW

Article 6. Patentable Inventions

Eurasian agency shall issue Eurasian patent for invention, which is new, has state of art and is industrially applicable.

 

Article 7. Persons Who Have the Right to Eurasian Patent

(1) The right to Eurasian patent shall belong to the inventor or his legal successor. In this case, if the inventor is the employee, the right to Eurasian patent shall be defined in accordance with the legislation of the state where the employee has his main place of employment; if the state where the employee has a main place of employment may not be defined the legislation of that state where the employee is conducting business activity with which the employee is connected shall be applied.

(2) For the procedural purposes in the Eurasian agency the applicant shall be considered as having the right to Eurasian patent.

 

Article 8. Right of Priority

The right of priority shall be recognized in accordance with the Paris Convention on protection of industrial property.

 

Article 9. Patent Rights

(1) The owner of Eurasian patent shall posses the exclusive right to use and to allow or prohibit others to use the patented inventions.

(2) The owner of Eurasian patent may assign his right or issue licenses.

(3) After publication of the application for issuance of the Eurasian patent (hereinafter referred to as Eurasian application) temporary protection shall be granted to the applicant in accordance with the national legislation of Acceding states.

 

Article 10. Volume of Legal Protection

The volume of legal protection granted by the Eurasian patent shall be defined by the invention formula. Description and sketches shall be used for the purposes of interpreting the invention formula only.

 

Article 11. Term of Eurasian Patent

The term of Eurasian patent shall be 20 years from the date of filing Eurasian application.

 

Article 12. Compulsory Licenses

(1) Compulsory licenses for use of Eurasian patent by third persons may be issued in accordance with the Paris Convention on protection of industrial property by the competent body of the Acceding state effective on the territory of this state.

(2) Decision on issuance of compulsory license may be appealed in courts or other competent bodies of Acceding states on the territory of which compulsory license is issued.

 

Article 13. Validity of Eurasian Patent and Execution of Rights

(1) Any dispute concerning the validity of Eurasian patent in certain Acceding state or infringement of Eurasian patent in certain Acceding state shall be settled by national courts or other competent bodies of this state on the basis of this Convention and Patent Instruction. The decision shall be effective only on the territory of Acceding states.

(2) Civil or other liability shall be imposed for the infringement of Eurasian patent in each of Acceding parties similar to liability imposed for infringement of national patent.

(3) Any national court or other competent body of the Acceding state may demand that the plaintiff submits the translation of the Eurasian patent in official language of this Acceding state.

 

Article 14. Patent Instruction. Substantive Norms

Patent Instruction shall contain details pertaining to the substantive norms of patent law including, in particular, following:

(1) definition of terms of patentability of invention, including definition of novelty, state of art and industrial application as well as requirements on disclosure of invention;

(2) circumstances which do not prevent the recognition of patentability of invention;

(3) requirement of integrity of invention;

(4) definition and effect of right of priority;

(5) definition of exclusive right to patented invention;

(6) right of prior use;

(7) interpretation of invention formula;

(8) inventor’s right to be mentioned in Eurasian application and Eurasian patent;

(9) succession and other types of assignment of the right to Eurasian application or Eurasian patent;

(10) confidentiality of examination of Eurasian applications.

 

PART IV. PROCEDURAL NORMS OF PATENT LAW

Article 15. Eurasian Application and Issuance of Eurasian Patent

(1) Eurasian application may be filed:

1) to Eurasian agency with the account of provisions of subpoint;

2) of this Article;

(2) for applicants of the Acceding state, Eurasian application shall be filed through the national patent agency of the Acceding state (hereinafter referred to as National agency) if this is provided for by the legislation of this state. Eurasian application filed through the National agency shall have the same consequences as it would have if it were filed at the same day to the Eurasian agency, if it is sent to Eurasian agency within the term established by this Convention and Patent Instruction for formal examination of Eurasian application and if it finds that the application corresponds to said requirements it shall send an application to Eurasian agency for further consideration.

(2) If the Eurasian application is filed with Eurasian agency upon filing single procedural fee shall be paid to Eurasian agency for filing an application, search, publishing, and other procedural actions. If Eurasian application is filed through the National agency, upon filing, a fee shall be paid to the National agency for examination of application for its compliance with requirements of formal examination and mailing, whereas a single procedural fee is paid to Eurasian agency upon mailing Eurasian application to this agency.

(3) Eurasian agency shall check the compliance of Eurasian application with the formal requirements of the Convention and Patent instruction and shall make search for this application. The report with the results of search shall be sent to the applicant.

(4) Eurasian application shall be published by the Eurasian agency together with the report on search promptly at the expiration of 18 months from the date of its filing or if the priority is requested, from the priority date. By the applicant’s petition Eurasian agency shall publish Eurasian application earlier than the said period. In this case the report on search shall be published separately on receipt.

(5) By the applicant’s petition which must be filed to Eurasian agency after expiration of six months from the date of publication of a search report Eurasian agency shall conduct a substance examination of Eurasian application.

(6) In case of filing a petition mentioned in point (5) of this Article, a fee shall be paid for examination to the Eurasian agency..

(7) A decision on issuance of Eurasian patent shall be taken on behalf of the Eurasian agency by the collegiums each consisting of three experts who are employees on the staff of the Eurasian agency and if other procedure is not adopted unanimously by the Administrative Board, by citizens of different Acceding states.

(8) In case of disagreement with the decision of Eurasian agency on refusal to issue Eurasian patent, the applicant may within three months period from the date of receipt of notification on this refusal, file an opposition with Eurasian agency which must be considered by the collegium of Eurasian agency formed in accordance with point (7) of this Article. The composition of collegium must include at least two experts, who did not take decision on the substance of this opposition.

(9) For filing of opposition specified in point (8) of this Article, fee shall be paid to Eurasian agency.

(10) For issuance of Eurasian patent the fee shall be paid to Eurasian agency within three months from the date of receipt by the applicant of notification from the Eurasian agency of the readiness to issue Eurasian patent.

(11) With the account of provisions of Article 17, Eurasian patent shall be effective on the territory of all Acceding states from the date of its publication.

(12) Any person who has the right to be representative in front of National agency of the Acceding state and registered as a patent attorney in the Eurasian agency, may act as a representative in front of the Eurasian agency. If the applicant has no permanent place of residence or permanent location on the territory of any Acceding state he must be represented by such patent attorney. Persons with permanent place of residence or permanent location on the territory of any of acceding states may file Eurasian applications and deal with Eurasian agency both independently and through patent attorneys or representatives other than patent attorneys.

 

Article 16. Transformation of Eurasian Applications into National Patent Applications

(1) The applicant may file a petition to Eurasian agency with the indication of Acceding states where he wants to receive patent by national procedure before the expiration of six months from the date of receipt by the applicant of the refusal to issue Eurasian patent or from the date of receipt of notification from the Eurasian agency about the refusal to satisfy the opposition filed in accordance with Art. 15 (8).

(2) In each indicated in such a manner Acceding state Eurasian application in relation to which such decision was taken and which is the object of such petition shall be considered properly filled national application filed with the National agency with the same date of filing and priority date if such, as the Eurasian application with all consequences provided for by the national legislation and shall be subject to further procedure in the National agency, provided that the applicant pays required national fees to the National agency.

 

Article 17. Maintenance of Eurasian Patents in Force

(1) Fees shall be paid for maintenance of the Eurasian patent in force annually.

(2) Fees for maintenance of the Eurasian patent in force shall be paid after its issuance annually as of the date corresponding to the date of filing Eurasian application.

(3) For extension of the Eurasian patent in each Acceding state patent holder must indicate the name of each Acceding state where he seeks for extension of the patent. Such indication shall be sent to the Eurasian agency simultaneously with the payment of fee for maintenance of the Eurasian patent in force. This fee shall be paid in relation to each indicated Acceding state.

 

Article 18. Fees

(1) Fees related to the Eurasian application or Eurasian patent as well as fees for services rendered by the Eurasian agency shall be paid to the Eurasian agency and with the account of provisions of point 2 of this Article shall belong to the Organization. Fee for examination of the Eurasian application for the compliance with the requirements of formal examination and mailing indicated in Art. 15(2) shall be paid and belong to the national agency where the Eurasian application was filed.

(2) All fees for maintenance of the Eurasian patent in force shall be paid to the Eurasian agency. The proportion of shares of distribution of fees for maintenance of Eurasian patent in force between the Organization and indicated Acceding states shall be established by the Administrative Board by the majority of 2/3 of votes, provided that not less than 1/5 of the amount of fee received for each indicated by the patent holder Acceding state shall belong to the Organization; the remaining part of this fee shall be transferred to the National agency of said Acceding state.

(3) The amounts of fees for maintenance of the Eurasian patent in force in relation to each indicated Acceding state shall be established by this state, currency in which the fee must be paid for maintenance of the Eurasian patent in force shall be established by the Administrative Board.

 

Article 19. Patent Instruction. Procedural Norms

Patent instruction shall contain details concerning the Eurasian patent procedure including, in particular, following:

(1) requirements to the form and content of the Eurasian application;

(2) requirements to patent attorneys, procedure of their attestation and registration;

(3) date of filing;

(4) calculation of terms;

(5) requesting priority;

(6) currencies and the procedure for payment of fees;

(7) change or correction of Eurasian application;

(8) patent search and examination;

(9) documentation and informational services of the Eurasian agency;

(10) publication of Eurasian applications and patents;

(11) Eurasian patents registry;

(12) bulletin of Eurasian agency;

(13) terms and procedure of administrative annulment of Eurasian patents;

(14) transformation of Eurasian applications into national patent applications;

(15) application of corresponding provisions in the event of several inventors, applicants, patent holders and representatives;

(16) contacts of Eurasian agency with the applicants, patent holders, patent attorneys and other third persons and the procedure of familiarization of said persons with the documents of the Eurasian agency.

 

PART V. APPLICATION OF PATENT COOPERATION TREATY (PCT)

Article 20. Application of Patent Cooperation Treaty

Patent Cooperation Treaty and Instruction to it shall be applied in the framework of the Eurasian patent system and in case of inconsistency between them and this Convention and Instruction, the former shall be applied. The Eurasian agency shall be the receiving agency and indicated and selected agency in accordance with the Patent Cooperation Treaty, and may by the authorization of Administrative Board request for granting the status of International Search Body and Body of International Preliminary Examination in accordance with said Treaty.

 

PART VI. TRANSITIONAL PROVISIONS

Article 21. Search. Collegium

(1) By authorization of the Administrative Board, the Eurasian agency may enter into an agreement with the National or regional patent agency on performance of search on Eurasian applications by such National or regional agency where it is necessary, provided that the National or regional patent agency may perform in all or certain fields of technics searches of the same type that are performed in accordance with the Patent Cooperation Treaty.

(2) Until it is necessary, the collegium of three experts indicated in Art. 15(7), may consist of experts recommended by National agency of Acceding states.

 

PART VII. MISCELLANEOUS

Article 22. Independence of National Patent Systems

(1) This Convention shall not infringe the right of any Acceding state to issue national patents.

(2) This Convention shall not be an impediment for any Acceding state to participate independently in any international organization and to develop various forms of international cooperation in the field of protection of industrial property.

 

Article 23. Revision of the Convention

(1) This Convention may be revised by the Acceding states at any time.

(2) The issue of conference convocation of Acceding states for revision of the Convention shall be decided by the Administrative Board. It shall also decide issues on rules of the procedure and other details related to the conferences on revision.

 

Article 24. Settlement of Disputes

In case of arising of any dispute on issues of interpretation or application of this Convention the General director of WIPO by request of any of parties to the dispute shall act as a mediator for bringing the parties to the settlement of the dispute.

 

PART VIII. INFORMATIONAL SERVICES

Article 25. Distribution of Patent Information

(1) Each Acceding state shall receive bulletin of the Eurasian agency and description of Eurasian applications and patents for free.

(2) With the account of point 1 of this Article no publication of the Eurasian agency shall be distributed for free without the permission of the Administrative Board.

 

PART IX. FINAL PROVISIONS

Article 26. Signing. Effectuation of the Convention

(1) This Convention shall be signed in Russian.

(2) Membership to this Convention shall be open for any state member to the United Nations Organization connected also with the Paris Convention on the Protection of Industrial Property and Patent Cooperation Treaty. In order to become the participant of the Convention the state must either sign the Convention and transfer for storage a ratification paper or to deposit the Act of Accession.

(3) No stipulations shall be allowed in relation to this Convention.

(4) This Convention shall be effective in relation to first three states which have ratified it or acceded to it in three months after depositing for storage to the General director of WIPO the third of abovementioned documents. In relation to any other state this Convention shall be effectuated in three months after the deposit of its ratification paper or deposit of Act of Accession.

 

Article 27. Denouncement of the Convention

Any Acceding state may denounce this Convention by the way of notification directed to the General Director of WIPO. Denouncement shall be effective in six months from the day of receipt of notification by the General Director of WIPO.

 

Article 28. Depository

General Director of WIPO shall be the depository of this Convention

 

Concluded in Moscow on September 9, 1994 in one original sample in Russian.

Patent Law Treaty

Notice: Kyrgyz Republic ratifed of November 20, 2001

г.Женева от 1 июня 2000 года

 

WIPO

Patent Law Treaty

Article 1. Abbreviated Expressions

For the purposes of this Treaty, unless expressly stated otherwise:

(i) “Office” means the authority of a Contracting Party entrusted with the granting of patents or with other matters covered by this Treaty;

(ii) “application” means an application for the grant of a patent, as referred to in Article 3;

(iii) “patent” means a patent as referred to in Article 3;

(iv) references to a “person” shall be construed as including, in particular, a natural person and a legal entity;

(v) “communication” means any application, or any request, declaration, document, correspondence or other information relating to an application or patent, whether relating to a procedure under this Treaty or not, which is filed with the Office;

(vi) “records of the Office” means the collection of information maintained by the Office, relating to and including the applications filed with, and the patents granted by, that Office or another authority with effect for the Contracting Party concerned, irrespective of the medium in which such information is maintained;

(vii) “recordation” means any act of including information in the records of the Office;

(viii) “applicant” means the person whom the records of the Office show, pursuant to the applicable law, as the person who is applying for the patent, or as another person who is filing or prosecuting the application;

(ix) “owner” means the person whom the records of the Office show as the owner of the patent;

(x) “representative” means a representative under the applicable law;

(xi) “signature” means any means of self-identification;

(xii) “a language accepted by the Office” means any one language accepted by the Office for the relevant procedure before the Office;

(xiii) “translation” means a translation into a language or, where appropriate, a transliteration into an alphabet or character set, accepted by the Office;

(xiv) “procedure before the Office” means any procedure in proceedings before the Office with respect to an application or patent;

(xv) except where the context indicates otherwise, words in the singular include the plural, and vice versa, and masculine personal pronouns include the feminine;

(xvi) “Paris Convention” means the Paris Convention for the Protection of Industrial Property, signed on March 20, 1883, as revised and amended;

(xvii) “Patent Cooperation Treaty” means the Patent Cooperation Treaty, signed on June 19, 1970, together with the Regulations and the Administrative Instructions under that Treaty, as revised, amended and modified;

(xviii) “Contracting Party” means any State or inter-governmental organization that is party to this Treaty;

(xix) “applicable law” means, where the Contracting Party is a State, the law of that State and, where the Contracting Party is an intergovernmental organization, the legal enactments under which that intergovernmental organization operates;

(xx) “instrument of ratification” shall be construed as including instruments of acceptance or approval;

(xxi) “Organization” means the World Intellectual Property Organization;

(xxii) “International Bureau” means the International Bureau of the Organization;

(xxiii) “Director General” means the Director General of the Organization.

 

Article 2. General Principles

(1) [More Favorable Requirements] A Contracting Party shall be free to provide for requirements which, from the viewpoint of applicants and owners, are more favorable than the requirements referred to in this Treaty and the Regulations, other than Article 5.

(2) [No Regulation of Substantive Patent Law] Nothing in this Treaty or the Regulations is intended to be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to patents as it desires.

 

Article 3. Applications and Patents to Which the Treaty Applies

(1) [Applications]

(a) The provisions of this Treaty and the Regulations shall apply to national and regional applications for patents for invention and for invention and for patents of addition, which are filed with or for the Office of a Contracting Party, and which are:

(i) types of applications permitted to be filed as international applications under the Patent Cooperation Treaty;

(ii) divisional applications of the types of applications referred to in item (i), for patents for invention or for patents of addition, as referred to in Article 4G(1) or (2) of the Paris Convention.

(b) Subject to the provisions of the Patent Cooperation Treaty, the provisions of this Treaty and the Regulations shall apply to international applications, for patents for invention and for patents of addition, under the Patent Cooperation Treaty:

(i) in respect of the time limits applicable under Articles 22 and 39(1) of the Patent Cooperation Treaty in the Office of a Contracting Party;

(ii) in respect of any procedure commenced on or after the date on which processing or examination of the international application may start under Article 23 or 40 of that Treaty.

(2) [Patents] The provisions of this Treaty and the Regulations shall apply to national and regional patents for invention, and to national and regional patents of addition, which have been granted with effect for a Contracting Party.

 

Article 4. Security Exception

Nothing in this Treaty and the Regulations shall limit the freedom of a Contracting Party to take any action it deems necessary for the preservation of essential security interests.

 

Article 5. Filing Date

(1) [Elements of Application]

(a) Except as otherwise prescribed in the Regulations, and subject to paragraphs (2) to (8), a Contracting Party shall provide that the filing date of an application shall be the date on which its Office has received all of the following elements, filed, at the option of the applicant, on paper or as otherwise permitted by the Office for the purposes of the filing date:

(i) an express or implicit indication to the effect that the elements are intended to be an application;

(ii) indications allowing the identity of the applicant to be established or allowing the applicant to be contacted by the Office;

(iii) a part which on the face of it appears to be a description.

(b) A Contracting Party may, for the purposes of the filing date, accept a drawing as the element referred to in subparagraph (a)(iii).

(c) For the purposes of the filing date, a Contracting Party may require both information allowing the identity of the applicant to be established and information allowing the applicant to be contacted by the Office, or it may accept evidence allowing the identity of the applicant to be established or allowing the applicant to be contacted by the Office, as the element referred to in subparagraph (a)(ii).

(2) [Language]

(a) A Contracting Party may require that the indications referred to in paragraph (1)(a)(i) and (ii) be in a language accepted by the Office.

(b) The part referred to in paragraph (1)(a)(iii) may, for the purposes of the filing date, be filed in any language.

(3) [Notification] Where the application does not comply with one or more of the requirements applied by the Contracting Party under paragraphs (1) and (2), the Office shall, as soon as practicable, notify the applicant, giving the opportunity to comply with any such requirement, and to make observations, within the time limit prescribed in the Regulations.

(4) [Subsequent Compliance with Requirements]

(a) Where one or more of the requirements applied by the Contracting Party under paragraphs (1) and (2) are not complied with in the application as initially filed, the filing date shall, subject to subparagraph (b) and paragraph (6), be the date on which all of the requirements applied by the Contracting Party under paragraphs (1) and (2) are subsequently complied with.

(b) A Contracting Party may provide that, where one or more of the requirements referred to in subparagraph (a) are not complied with within the time limit prescribed in the Regulations, the application shall be deemed not to have been filed. Where the application is deemed not to have been filed, the Office shall notify the applicant accordingly, indicating the reasons therefor.

(5) [Notification Concerning Missing Part of Description or Drawing] Where, in establishing the filing date, the Office finds that a part of the description appears to be missing from the application, or that the application refers to a drawing which appears to be missing from the application, the Office shall promptly notify the applicant accordingly.

(6) [Filing Date Where Missing Part of Description or Drawing Is Filed]

(a) Where a missing part of the description or a missing drawing is filed with the Office within the time limit prescribed in the Regulations, that part of the description or drawing shall be included in the application, and, subject to subparagraphs (b) and (c), the filing date shall be the date on which the Office has received that part of the description or that drawing, or the date on which all of the requirements applied by the Contracting Party under paragraphs (1) and (2) are complied with, whichever is later.

(b) Where the missing part of the description or the missing drawing is filed under subparagraph (a) to rectify its omission from an application which, at the date on which one or more elements referred to in paragraph (1)(a) were first received by the Office, claims the priority of an earlier application, the filing date shall, upon the request of the applicant filed within a time limit prescribed in the Regulations, and subject to the requirements prescribed in the Regulations, be the date on which all the requirements applied by the Contracting Party under paragraphs (1) and (2) are complied with.

(c) Where the missing part of the description or the missing drawing filed under subparagraph (a) is withdrawn within a time limit fixed by the Contracting Party, the filing date shall be the date on which the requirements applied by the Contracting Party under paragraphs (1) and (2) are complied with.

(7) [Replacing Description and Drawings by Reference to a Previously Filed Application]

(a) Subject to the requirements prescribed in the Regulations, a reference, made upon the filing of the application, in a language accepted by the Office, to a previously filed application shall, for the purposes of the filing date of the application, replace the description and any drawings.

(b) Where the requirements referred to in subparagraph (a) are not complied with, the application may be deemed not to have been filed. Where the application is deemed not to have been filed, the Office shall notify the applicant accordingly, indicating the reasons therefor.

(8) [Exceptions] Nothing in this Article shall limit:

(i) the right of an applicant under Article 4G(1) or (2) of the Paris Convention to preserve, as the date of a divisional application referred to in that Article, the date of the initial application referred to in that Article and the benefit of the right of priority, if any;

(ii) the freedom of a Contracting Party to apply any requirements necessary to accord the benefit of the filing date of an earlier application to an application of any type prescribed in the Regulations.

 

Article 6. Application

(1) [Form or Contents of Application] Except where otherwise provided for by this Treaty, no Contracting Party shall require compliance with any requirement relating to the form or contents of an application different from or additional to:

(i) the requirements relating to form or contents which are provided for in respect of international applications under the Patent Cooperation Treaty;

(ii) the requirements relating to form or contents compliance with which, under the Patent Cooperation Treaty, may be required by the Office of, or acting for, any State party to that Treaty once the processing or examination of an international application, as referred to in Article 23 or 40 of the said Treaty, has started;

(iii) any further requirements prescribed in the Regulations.

(2) [Request Form]

(a) A Contracting Party may require that the contents of an application which correspond to the contents of the request of an international application under the Patent Cooperation Treaty be presented on a request Form prescribed by that Contracting Party. A Contracting Party may also require that any further contents allowed under paragraph (1)(ii) or prescribed in the Regulations pursuant to paragraph (1)(iii) be contained in that request Form.

(b) Notwithstanding subparagraph (a), and subject to Article 8(1), a Contracting Party shall accept the presentation of the contents referred to in subparagraph (a) on a request Form provided for in the Regulations.

(3) [Translation] A Contracting Party may require a translation of any part of the application that is not in a language accepted by its Office. A Contracting Party may also require a translation of the parts of the application, as prescribed in the Regulations, that are in a language accepted by the Office, into any other languages accepted by that Office.

(4) [Fees] A Contracting Party may require that fees be paid in respect of the application. A Contracting Party may apply the provisions of the Patent Cooperation Treaty relating to payment of application fees.

(5) [Priority Document] Where the priority of an earlier application is claimed, a Contracting Party may require that a copy of the earlier application, and a translation where the earlier application is not in a language accepted by the Office, be filed in accordance with the requirements prescribed in the Regulations.

(6) [Evidence] A Contracting Party may require that evidence in respect of any matter referred to in paragraph (1) or (2) or in a declaration of priority, or any translation referred to in paragraph (3) or (5), be filed with its Office in the course of the processing of the application only where that Office may reasonably doubt the veracity of that matter or the accuracy of that translation.

(7) [Notification] Where one or more of the requirements applied by the Contracting Party under paragraphs (1) to (6) are not complied with, the Office shall notify the applicant, giving the opportunity to comply with any such requirement, and to make observations, within the time limit prescribed in the Regulations.

(8) [Non-Compliance with Requirements]

(a) Where one or more of the requirements applied by the Contracting Party under paragraphs (1) to (6) are not complied with within the time limit prescribed in the Regulations, the Contracting Party may, subject to subparagraph (b) and Articles 5 and 10, apply such sanction as is provided for in its law.

(b) Where any requirement applied by the Contracting Party under paragraph (1), (5) or (6) in respect of a priority claim is not complied with within the time limit prescribed in the Regulations, the priority claim may, subject to Article 13, be deemed non-existent. Subject to Article 5(7)(b), no other sanctions may be applied.

 

Article 7. Representation

(1) [Representatives]

(a) A Contracting Party may require that a representative appointed for the purposes of any procedure before the Office:

(i) have the right, under the applicable law, to practice before the Office in respect of applications and patents;

(ii) provide, as his address, an address on a territory prescribed by the Contracting Party.

(b) Subject to subparagraph (c), an act, with respect to any procedure before the Office, by or in relation to a representative who complies with the requirements applied by the Contracting Party under subparagraph (a), shall have the effect of an act by or in relation to the applicant, owner or other interested person who appointed that representative.

(c) A Contracting Party may provide that, in the case of an oath or declaration or the revocation of a power of attorney, the signature of a representative shall not have the effect of the signature of the applicant, owner or other interested person who appointed that representative.

(2) [Mandatory Representation]

(a) A Contracting Party may require that an applicant, owner or other interested person appoint a representative for the purposes of any procedure before the Office, except that an assignee of an application, an applicant, owner or other interested person may act himself before the Office for the following procedures:

(i) the filing of an application for the purposes of the filing date;

(ii) the mere payment of a fee;

(iii) any other procedure as prescribed in the Regulations;

(iv) the issue of a receipt or notification by the Office in respect of any procedure referred to in items (i) to (iii).

(b) A maintenance fee may be paid by any person.

(3) [Appointment of Representative] A Contracting Party shall accept that the appointment of the representative be filed with the Office in a manner prescribed in the Regulations.

(4) [Prohibition of Other Requirements] No Contracting Party may require that formal requirements other than those referred to in paragraphs (1) to (3) be complied with in respect of the matters dealt with in those paragraphs, except where otherwise provided for by this Treaty or prescribed in the Regulations.

(5) [Notification] Where one or more of the requirements applied by the Contracting Party under paragraphs (1) to (3) are not complied with, the Office shall notify the assignee of the application, applicant, owner or other interested person, giving the opportunity to comply with any such requirement, and to make observations, within the time limit prescribed in the Regulations.

(6) [Non-Compliance with Requirements] Where one or more of the requirements applied by the Contracting Party under paragraphs (1) to (3) are not complied with within the time limit prescribed in the Regulations, the Contracting Party may apply such sanction as is provided for in its law.

 

Article 8. Communications; Addresses

(1) [Form and Means of Transmittal of Communications]

(a) Except for the establishment of a filing date under Article 5(1), and subject to Article 6(1), the Regulations shall, subject to subparagraphs (b) to (d), set out the requirements which a Contracting Party shall be permitted to apply as regards the form and means of transmittal of communications.

(b) No Contracting Party shall be obliged to accept the filing of communications other than on paper.

(c) No Contracting Party shall be obliged to exclude the filing of communications on paper.

(d) A Contracting Party shall accept the filing of communications on paper for the purpose of complying with a time limit.

(2) [Language of Communications] A Contracting Party may, except where otherwise provided for by this Treaty or the Regulations, require that a communication be in a language accepted by the Office.

(3) [Model International Forms] Notwithstanding paragraph (1)(a), and subject to paragraph (1)(b) and Article 6(2)(b), a Contracting Party shall accept the presentation of the contents of a communication on a Form which corresponds to a Model International Form in respect of such a communication provided for in the Regulations, if any.

(4) [Signature of Communications]

(a) Where a Contracting Party requires a signature for the purposes of any communication, that Contracting Party shall accept any signature that complies with the requirements prescribed in the Regulations.

(b) No Contracting Party may require the attestation, notarization, authentication, legalization or other certification of any signature which is communicated to its Office, except in respect of any quasi-judicial proceedings or as prescribed in the Regulations.

(c) Subject to subparagraph (b), a Contracting Party may require that evidence be filed with the Office only where the Office may reasonably doubt the authenticity of any signature.

(5) [Indications in Communications] A Contracting Party may require that any communication contain one or more indications prescribed in the Regulations.

(6) [Address for Correspondence, Address for Legal Service and Other Address] A Contracting Party may, subject to any provisions prescribed in the Regulations, require that an applicant, owner or other interested person indicate in any communication:

(i) an address for correspondence;

(ii) an address for legal service;

(iii) any other address provided for in the Regulations.

(7) [Notification] Where one or more of the requirements applied by the Contracting Party under paragraphs (1) to (6) are not complied with in respect of communications, the Office shall notify the applicant, owner or other interested person, giving the opportunity to comply with any such requirement, and to make observations, within the time limit prescribed in the Regulations.

(8) [Non-Compliance with Requirements] Where one or more of the requirements applied by the Contracting Party under paragraphs (1) to (6) are not complied with within the time limit prescribed in the Regulations, the Contracting Party may, subject to Articles 5 and 10 and to any exceptions prescribed in the Regulations, apply such sanction as is provided for in its law.

 

Article 9. Notifications

(1) [Sufficient Notification] Any notification under this Treaty or the Regulations which is sent by the Office to an address for correspondence or address for legal service indicated under Article 8(6), or any other address provided for in the Regulations for the purpose of this provision, and which complies with the provisions with respect to that notification, shall constitute a sufficient notification for the purposes of this Treaty and the Regulations.

(2) [If Indications Allowing Contact Were Not Filed] Nothing in this Treaty and in the Regulations shall oblige a Contracting Party to send a notification to an applicant, owner or other interested person, if indications allowing that applicant, owner or other interested person to be contacted have not been filed with the Office.

(3) [Failure to Notify] Subject to Article 10(1), where an Office does not notify an applicant, owner or other interested person of a failure to comply with any requirement under this Treaty or the Regulations, that absence of notification does not relieve that applicant, owner or other interested person of the obligation to comply with that requirement.

 

Article 10. Validity of Patent; Revocation

(1) [Validity of Patent Not Affected by Non-Compliance with Certain Formal Requirements] Non-compliance with one or more of the formal requirements referred to in Articles 6(1), (2), (4) and (5) and 8(1) to (4) with respect to an application may not be a ground for revocation or invalidation of a patent, either totally or in part, except where the non-compliance with the formal requirement occurred as a result of a fraudulent intention.

(2) [Opportunity to Make Observations, Amendments or Corrections in Case of Intended Revocation or Invalidation] A patent may not be revoked or invalidated, either totally or in part, without the owner being given the opportunity to make observations on the intended revocation or invalidation, and to make amendments and corrections where permitted under the applicable law, within a reasonable time limit.

(3) [No Obligation for Special Procedures] Paragraphs (1) and (2) do not create any obligation to put in place judicial procedures for the enforcement of patent rights distinct from those for the enforcement of law in general.

 

Article 11. Relief in Respect of Time Limits

(1) [Extension of Time Limits] A Contracting Party may provide for the extension, for the period prescribed in the Regulations, of a time limit fixed by the Office for an action in a procedure before the Office in respect of an application or a patent, if a request to that effect is made to the Office in accordance with the requirements prescribed in the Regulations, and the request is filed, at the option of the Contracting Party:

(i) prior to the expiration of the time limit; or

(ii) after the expiration of the time limit, and within the time limit prescribed in the Regulations.

(2) [Continued Processing] Where an applicant or owner has failed to comply with a time limit fixed by the Office of a Contracting Party for an action in a procedure before the Office in respect of an application or a patent, and that Contracting Party does not provide for extension of a time limit under paragraph (1)(ii), the Contracting Party shall provide for continued processing with respect to the application or patent and, if necessary, reinstatement of the rights of the applicant or owner with respect to that application or patent, if:

(i) a request to that effect is made to the Office in accordance with the requirements prescribed in the Regulations;

(ii) the request is filed, and all of the requirements in respect of which the time limit for the action concerned applied are complied with, within the time limit prescribed in the Regulations.

(3) [Exceptions] No Contracting Party shall be required to provide for the relief referred to in paragraph (1) or (2) with respect to the exceptions prescribed in the Regulations.

(4) [Fees] A Contracting Party may require that a fee be paid in respect of a request under paragraph (1) or (2).

(5) [Prohibition of Other Requirements] No Contracting Party may require that requirements other than those referred to in paragraphs (1) to (4) be complied with in respect of the relief provided for under paragraph (1) or (2), except where otherwise provided for by this Treaty or prescribed in the Regulations.

(6) [Opportunity to Make Observations in Case of Intended Refusal] A request under paragraph (1) or (2) may not be refused without the applicant or owner being given the opportunity to make observations on the intended refusal within a reasonable time limit.

 

Article 12. Reinstatement of Rights After a Finding of Due Care

or Unintentionality by the Office

(1) [Request] A Contracting Party shall provide that, where an applicant or owner has failed to comply with a time limit for an action in a procedure before the Office, and that failure has the direct consequence of causing a loss of rights with respect to an application or patent, the Office shall reinstate the rights of the applicant or owner with respect to the application or patent concerned, if:

(i) a request to that effect is made to the Office in accordance with the requirements prescribed in the Regulations;

(ii) the request is filed, and all of the requirements in respect of which the time limit for the said action applied are complied with, within the time limit prescribed in the Regulations;

(iii) the request states the reasons for the failure to comply with the time limit; and

(iv) the Office finds that the failure to comply with the time limit occurred in spite of due care required by the circumstances having been taken or, at the option of the Contracting Party, that any delay was unintentional.

(2) [Exceptions] No Contracting Party shall be required to provide for the reinstatement of rights under paragraph (1) with respect to the exceptions prescribed in the Regulations.

(3) [Fees] A Contracting Party may require that a fee be paid in respect of a request under paragraph (1).

(4) [Evidence] A Contracting Party may require that a declaration or other evidence in support of the reasons referred to in paragraph (1)(iii) be filed with the Office within a time limit fixed by the Office.

(5) [Opportunity to Make Observations in Case of Intended Refusal] A request under paragraph (1) may not be refused, totally or in part, without the requesting party being given the opportunity to make observations on the intended refusal within a reasonable time limit.

 

Article 13. Correction or Addition of Priority Claim; Restoration of Priority Right

(1) [Correction or Addition of Priority Claim] Except where otherwise prescribed in the Regulations, a Contracting Party shall provide for the correction or addition of a priority claim with respect to an application (“the subsequent application”), if:

(i) a request to that effect is made to the Office in accordance with the requirements prescribed in the Regulations;

(ii) the request is filed within the time limit prescribed in the Regulations; and

(iii) the filing date of the subsequent application is not later than the date of the expiration of the priority period calculated from the filing date of the earliest application whose priority is claimed.

(2) [Delayed Filing of the Subsequent Application] Taking into consideration Article 15, a Contracting Party shall provide that, where an application (“the subsequent application”) which claims or could have claimed the priority of an earlier application has a filing date which is later than the date on which the priority period expired, but within the time limit prescribed in the Regulations, the Office shall restore the right of priority, if:

(i) a request to that effect is made to the Office in accordance with the requirements prescribed in the Regulations;

(ii) the request is filed within the time limit prescribed in the Regulations;

(iii) the request states the reasons for the failure to comply with the priority period; and

(iv) the Office finds that the failure to file the subsequent application within the priority period occurred in spite of due care required by the circumstances having been taken or, at the option of the Contracting Party, was unintentional.

(3) [Failure to File a Copy of Earlier Application] A Contracting Party shall provide that, where a copy of an earlier application required under Article 6(5) is not filed with the Office within the time limit prescribed in the Regulations pursuant to Article 6, the Office shall restore the right of priority, if:

(i) a request to that effect is made to the Office in accordance with the requirements prescribed in the Regulations;

(ii) the request is filed within the time limit for filing the copy of the earlier application prescribed in the Regulations pursuant to Article 6(5);

(iii) the Office finds that the request for the copy to be provided had been filed with the Office with which the earlier application was filed, within the time limit prescribed in the Regulations; and

(iv) a copy of the earlier application is filed within the time limit prescribed in the Regulations.

(4) [Fees] A Contracting Party may require that a fee be paid in respect of a request under paragraphs (1) to (3).

(5) [Evidence] A Contracting Party may require that a declaration or other evidence in support of the reasons referred to in paragraph (2)(iii) be filed with the Office within a time limit fixed by the Office.

(6) [Opportunity to Make Observations in Case of Intended Refusal] A request under paragraphs (1) to (3) may not be refused, totally or in part, without the requesting party being given the opportunity to make observations on the intended refusal within a reasonable time limit.

 

Article 14. Regulations

(1) [Content]

(a) The Regulations annexed to this Treaty provide rules concerning:

(i) matters which this Treaty expressly provides are to be “prescribed in the Regulations”;

(ii) details useful in the implementation of the provisions of this Treaty;

(iii) administrative requirements, matters or procedures.

(b) The Regulations also provide rules concerning the formal requirements which a Contracting Party shall be permitted to apply in respect of requests for:

(i) recordation of change in name or address;

(ii) recordation of change in applicant or owner;

(iii) recordation of a license or a security interest;

(iv) correction of a mistake.

(c) The Regulations also provide for the establishment of Model International Forms, and for the establishment of a request Form for the purposes of Article 6(2)(b), by the Assembly, with the assistance of the International Bureau.

(2) [Amending the Regulations] Subject to paragraph (3), any amendment of the Regulations shall require three-fourths of the votes cast.

(3) [Requirement of Unanimity]

(a) The Regulations may specify provisions of the Regulations which may be amended only by unanimity.

(b) Any amendment of the Regulations resulting in the addition of provisions to, or the deletion of provisions from, the provisions specified in the Regulations pursuant to subparagraph (a) shall require unanimity.

(c) In determining whether unanimity is attained, only votes actually cast shall be taken into consideration. Abstentions shall not be considered as votes.

(4) [Conflict Between the Treaty and the Regulations] In the case of conflict between the provisions of this Treaty and those of the Regulations, the former shall prevail.

 

Article 15. Relation to the Paris Convention

(1) [Obligation to Comply with the Paris Convention] Each Contracting Party shall comply with the provisions of the Paris Convention which concern patents.

(2) [Obligations and Rights Under the Paris Convention]

(a) Nothing in this Treaty shall derogate from obligations that Contracting Parties have to each other under the Paris Convention.

(b) Nothing in this Treaty shall derogate from rights that applicants and owners enjoy under the Paris Convention.

 

Article 16. Effect of Revisions, Amendments and Modifications of the Patent Cooperation Treaty

(1) [Applicability of Revisions, Amendments and Modifications of the Patent Cooperation Treaty] Subject to paragraph (2), any revision, amendment or modification of the Patent Cooperation Treaty made after June 2, 2000, which is consistent with the Articles of this Treaty, shall apply for the purposes of this Treaty and the Regulations if the Assembly so decides, in the particular case, by three-fourths of the votes cast.

(2) [Non-Applicability of Transitional Provisions of the Patent Cooperation Treaty] Any provision of the Patent Cooperation Treaty, by virtue of which a revised, amended or modified provision of that Treaty does not apply to a State party to it, or to the Office of or acting for such a State, for as long as the latter provision is incompatible with the law applied by that State or Office, shall not apply for the purposes of this Treaty and the Regulations.

 

Article 17. Assembly

(1) [Composition]

(a) The Contracting Parties shall have an Assembly.

(b) Each Contracting Party shall be represented in the Assembly by one delegate, who may be assisted by alternate delegates, advisors and experts. Each delegate may represent only one Contracting Party.

(2) [Tasks] The Assembly shall:

(i) deal with matters concerning the maintenance and development of this Treaty and the application and operation of this Treaty;

(ii) establish Model International Forms, and the request Form, referred to in Article 14(1)(c), with the assistance of the International Bureau;

(iii) amend the Regulations;

(iv) determine the conditions for the date of application of each Model International Form, and the request Form, referred to in item (ii), and each amendment referred to in item (iii);

(v) decide, pursuant to Article 16(1), whether any revision, amendment or modification of the Patent Cooperation Treaty shall apply for the purposes of this Treaty and the Regulations;

(vi) perform such other functions as are appropriate under this Treaty.

(3) [Quorum]

(a) One-half of the members of the Assembly which are States shall constitute a quorum.

(b) Notwithstanding subparagraph (a), if, in any session, the number of the members of the Assembly which are States and are represented is less than one-half but equal to or more than one-third of the members of the Assembly which are States, the Assembly may make decisions but, with the exception of decisions concerning its own procedure, all such decisions shall take effect only if the conditions set forth hereinafter are fulfilled. The International Bureau shall communicate the said decisions to the members of the Assembly which are States and were not represented and shall invite them to express in writing their vote or abstention within a period of three months from the date of the communication. If, at the expiration of this period, the number of such members having thus expressed their vote or abstention attains the number of the members which was lacking for attaining the quorum in the session itself, such decisions shall take effect, provided that at the same time the required majority still obtains.

(4) [Taking Decisions in the Assembly]

(a) The Assembly shall endeavor to take its decisions by consensus.

(b) Where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. In such a case:

(i) each Contracting Party that is a State shall have one vote and shall vote only in its own name; and

(ii) any Contracting Party that is an intergovernmental organization may participate in the vote, in place of its Member States, with a number of votes equal to the number of its Member States which are party to this Treaty. No such intergovernmental organization shall participate in the vote if any one of its Member States exercises its right to vote and vice versa. In addition, no such intergovernmental organization shall participate in the vote if any one of its Member States party to this Treaty is a Member State of another such intergovernmental organization and that other intergovernmental organization participates in that vote.

(5) [Majorities]

(a) Subject to Articles 14(2) and (3), 16(1) and 19(3), the decisions of the Assembly shall require two-thirds of the votes cast.

(b) In determining whether the required majority is attained, only votes actually cast shall be taken into consideration. Abstentions shall not be considered as votes.

(6) [Sessions] The Assembly shall meet in ordinary session once every two years upon convocation by the Director General.

(7) [Rules of Procedure] The Assembly shall establish its own rules of procedure, including rules for the convocation of extraordinary sessions.

 

Article 18. International Bureau

(1) [Administrative Tasks]

(a) The International Bureau shall perform the administrative tasks concerning this Treaty.

(b) In particular, the International Bureau shall prepare the meetings and provide the secretariat of the Assembly and of such committees of experts and working groups as may be established by the Assembly.

(2) [Meetings Other than Sessions of the Assembly] The Director General shall convene any committee and working group established by the Assembly.

(3) [Role of the International Bureau in the Assembly and Other Meetings]

(a) The Director General and persons designated by the Director General shall participate, without the right to vote, in all meetings of the Assembly, the committees and working groups established by the Assembly.

(b) The Director General or a staff member designated by the Director General shall be ex officio secretary of the Assembly, and of the committees and working groups referred to in subparagraph (a).

(4) [Conferences]

(a) The International Bureau shall, in accordance with the directions of the Assembly, make the preparations for any revision conferences.

(b) The International Bureau may consult with member States of the Organization, intergovernmental organizations and international and national non-governmental organizations concerning the said preparations.

(c) The Director General and persons designated by the Director General shall take part, without the right to vote, in the discussions at revision conferences.

(5) [Other Tasks] The International Bureau shall carry out any other tasks assigned to it in relation to this Treaty.

 

Article 19. Revisions

(1) [Revision of the Treaty] Subject to paragraph (2), this Treaty may be revised by a conference of the Contracting Parties. The convocation of any revision conference shall be decided by the Assembly.

(2) [Revision or Amendment of Certain Provisions of the Treaty] Article 17(2) and (6) may be amended either by a revision conference, or by the Assembly according to the provisions of paragraph (3).

(3) [Amendment by the Assembly of Certain Provisions of the Treaty]

(a) Proposals for the amendment by the Assembly of Article 17(2) and (6) may be initiated by any Contracting Party or by the Director General. Such proposals shall be communicated by the Director General to the Contracting Parties at least six months in advance of their consideration by the Assembly.

(b) Adoption of any amendment to the provisions referred to in subparagraph (a) shall require three-fourths of the votes cast.

(c) Any amendment to the provisions referred to in subparagraph (a) shall enter into force one month after written notifications of acceptance, effected in accordance with their respective constitutional processes, have been received by the Director General from three-fourths of the Contracting Parties which were members of the Assembly at the time the Assembly adopted the amendment. Any amendment to the said provisions thus accepted shall bind all the Contracting Parties at the time the amendment enters into force, and States and intergovernmental organizations which become Contracting Parties at a subsequent date.

 

Article 20. Becoming Party to the Treaty

(1) [States] Any State which is party to the Paris Convention or which is a member of the Organization, and in respect of which patents may be granted, either through the State’s own Office or through the Office of another State or intergovernmental organization, may become party to this Treaty.

(2) [Intergovernmental Organizations] Any intergovernmental organization may become party to this Treaty if at least one member State of that intergovernmental organization is party to the Paris Convention or a member of the Organization, and the intergovernmental organization declares that it has been duly authorized, in accordance with its internal procedures, to become party to this Treaty, and declares that:

(i) it is competent to grant patents with effect for its member States; or

(ii) it is competent in respect of, and has its own legislation binding on all its member States concerning, matters covered by this Treaty, and it has, or has charged, a regional Office for the purpose of granting patents with effect in its territory in accordance with that legislation.

Subject to paragraph (3), any such declaration shall be made at the time of the deposit of the instrument of ratification or accession.

(3) [Regional Patent Organizations] The European Patent Organization, the Eurasian Patent Organization and the African Regional Industrial Property Organization, having made the declaration referred to in paragraph (2)(i) or (ii) in the Diplomatic Conference that has adopted this Treaty, may become party to this Treaty as an intergovernmental organization, if it declares, at the time of the deposit of the instrument of ratification or accession that it has been duly authorized, in accordance with its internal procedures, to become party to this Treaty.

(4) [Ratification or Accession] Any State or intergovernmental organization satisfying the requirements in paragraph (1), (2) or (3) may deposit:

(i) an instrument of ratification if it has signed this Treaty; or

(ii) an instrument of accession if it has not signed this Treaty.

 

Article 21. Entry into Force; Effective Dates of Ratifications and Accessions

(1) [Entry into Force of this Treaty] This Treaty shall enter into force three months after ten instruments of ratification or accession by States have been deposited with the Director General.

(2) [Effective Dates of Ratifications and Accessions] This Treaty shall bind:

(i) the ten States referred to in paragraph (1), from the date on which this Treaty has entered into force;

(ii) each other State, from the expiration of three months after the date on which the State has deposited its instrument of ratification or accession with the Director General, or from any later date indicated in that instrument, but no later than six months after the date of such deposit;

(iii) each of the European Patent Organization, the Eurasian Patent Organization and the African Regional Industrial Property Organization, from the expiration of three months after the deposit of its instrument of ratification or accession, or from any later date indicated in that instrument, but no later than six months after the date of such deposit, if such instrument has been deposited after the entry into force of this Treaty according to paragraph (1), or three months after the entry into force of this Treaty if such instrument has been deposited before the entry into force of this Treaty;

(iv) any other intergovernmental organization that is eligible to become party to this Treaty, from the expiration of three months after the deposit of its instrument of ratification or accession, or from any later date indicated in that instrument, but no later than six months after the date of such deposit.

 

Article 22. Application of the Treaty to Existing Applications and Patents

(1) [Principle] Subject to paragraph (2), a Contracting Party shall apply the provisions of this Treaty and the Regulations, other than Articles 5 and 6(1) and (2) and related Regulations, to applications which are pending, and to patents which are in force, on the date on which this Treaty binds that Contracting Party under Article 21.

(2) [Procedures] No Contracting Party shall be obliged to apply the provisions of this Treaty and the Regulations to any procedure in proceedings with respect to applications and patents referred to in paragraph (1), if such procedure commenced before the date on which this Treaty binds that Contracting Party under Article 21.

 

Article 23. Reservations

(1) [Reservation] Any State or intergovernmental organization may declare through a reservation that the provisions of Article 6(1) shall not apply to any requirement relating to unity of invention applicable under the Patent Cooperation Treaty to an international application.

(2) [Modalities] Any reservation under paragraph (1) shall be made in a declaration accompanying the instrument of ratification of, or accession to, this Treaty of the State or intergovernmental organization making the reservation.

(3) [Withdrawal] Any reservation under paragraph (1) may be withdrawn at any time.

(4) [Prohibition of Other Reservations] No reservation to this Treaty other than the reservation allowed under paragraph (1) shall be permitted.

 

Article 24. Denunciation of the Treaty

(1) [Notification] Any Contracting Party may denounce this Treaty by notification addressed to the Director General.

(2) [Effective Date] Any denunciation shall take effect one year from the date on which the Director General has received the notification or at any later date indicated in the notification. It shall not affect the application of this Treaty to any application pending or any patent in force in respect of the denouncing Contracting Party at the time of the coming into effect of the denunciation.

 

Article 25. Languages of the Treaty

(1) [Authentic Texts] This Treaty is signed in a single original in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally and exclusively authentic.

(2) [Official Texts] An official text in any language other than those referred to in paragraph (1) shall be established by the Director General, after consultation with the interested parties. For the purposes of this paragraph, interested party means any State which is party to the Treaty, or is eligible to become party to the Treaty under Article 20(1), whose official language, or one of whose official languages, is involved, and the European Patent Organization, the Eurasian Patent Organization and the African Regional Industrial Property Organization and any other intergovernmental organization that is party to the Treaty, or may become party to the Treaty, if one of its official languages is involved.

(3) [Authentic Texts to Prevail] In case of differences of opinion on interpretation between authentic and official texts, the authentic texts shall prevail.

 

Article 26. Signature of the Treaty

The Treaty shall remain open for signature by any State that is eligible for becoming party to the Treaty under Article 20(1) and by the European Patent Organization, the Eurasian Patent Organization and the African Regional Industrial Property Organization at the headquarters of the Organization for one year after its adoption.

 

Article 27. Depositary; Registration

(1) [Depositary] The Director General is the depositary of this Treaty.

(2) [Registration] The Director General shall register this Treaty with the Secretariat of the United Nations.

() Гаагский акт для международного депонирования промышленных образцов

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Paris convention for the Protection of Industrial Property

of March 20, 1883 on September 28, 1979

 

Paris Convention

for the Protection of Industrial Property

 

Article 1. Establishment of the Union; Scope of Industrial Property*

(1) The countries to which this Convention applies constitute a Union for the protection of industrial property.

(2) The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.

(3) Industrial property shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour.

(4) Patents shall include the various kinds of industrial patents recognized by the laws of the countries of the Union, such as patents of importation, patents of improvement, patents and certificates of addition, etc.

*- Articles have been given titles to facilitate their identification. There are no titles in the signed (French) text.

 

Article 2. National Treatment for Nationals of Countries of the Union

(1) Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.

(2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights.

(3) The provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure and to jurisdiction, and to the designation of an address for service or the appointment of an agent, which may be required by the laws on industrial property are expressly reserved.

 

Article 3. Same Treatment for Certain Categories of Persons as for Nationals of Countries of the Union

Nationals of countries outside the Union who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union shall be treated in the same manner as nationals of the countries of the Union.

 

Article 4. A to I. Patents, Utility Models, Industrial Designs, Marks, Inventors’ Certificates: Right of Priority  – G. Patents: Division of the Application

A.

(1) Any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.

(2) Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority.

(3) By a regular national filing is meant any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application.

B.

Consequently, any subsequent filing in any of the other countries of the Union before the expiration of the periods referred to above shall not be invalidated by reason of any acts accomplished in the interval, in particular, another filing, the publication or exploitation of the invention, the putting on sale of copies of the design, or the use of the mark, and such acts cannot give rise to any third-party right or any right of personal possession. Rights acquired by third parties before the date of the first application that serves as the basis for the right of priority are reserved in accordance with the domestic legislation of each country of the Union

C.

(1) The periods of priority referred to above shall be twelve months for patents and utility models, and six months for industrial designs and trademarks.

(2) These periods shall start from the date of filing of the first application; the day of filing shall not be included in the period.

(3) If the last day of the period is an official holiday, or a day when the Office is not open for the filing of applications in the country where protection is claimed, the period shall be extended until the first following working day.

(4) A subsequent application concerning the same subject as a previous first application within the meaning of paragraph (2), above, filed in the same country of the Union shall be considered as the first application, of which the filing date shall be the starting point of the period of priority, if, at the time of filing the subsequent application, the said previous application has been withdrawn, abandoned, or refused, without having been laid open to public inspection and without leaving any rights outstanding, and if it has not yet served as a basis for claiming a right of priority. The previous application may not thereafter serve as a basis for claiming a right of priority.

D.

(1) Any person desiring to take advantage of the priority of a previous filing shall be required to make a declaration indicating the date of such filing and the country in which it was made. Each country shall determine the latest date on which such declaration must be made.

(2) These particulars shall be mentioned in the publications issued by the competent authority, and in particular in the patents and the specifications relating thereto.

(3) The countries of the Union may require any person making a declaration of priority to produce a copy of the application (description, drawings, etc.) previously filed. The copy, certified as correct by the authority which received such application, shall not require any authentication, and may in any case be filed, without fee, at any time within three months of the filing of the subsequent application. They may require it to be accompanied by a certificate from the same authority showing the date of filing, and by a translation.

(4) No other formalities may be required for the declaration of priority at the time of filing the application. Each country of the Union shall determine the consequences of failure to comply with the formalities prescribed by this Article, but such consequences shall in no case go beyond the loss of the right of priority.

(5) Subsequently, further proof may be required.

Any person who avails himself of the priority of a previous application shall be required to specify the number of that application; this number shall be published as provided for by paragraph (2), above.

E.

(1) Where an industrial design is filed in a country by virtue of a right of priority based on the filing of a utility model, the period of priority shall be the same as that fixed for industrial designs.

(2) Furthermore, it is permissible to file a utility model in a country by virtue of a right of priority based on the filing of a patent application, and vice versa.

F.

No country of the Union may refuse a priority or a patent application on the ground that the applicant claims multiple priorities, even if they originate in different countries, or on the ground that an application claiming one or more priorities contains one or more elements that were not included in the application or applications whose priority is claimed, provided that, in both cases, there is unity of invention within the meaning of the law of the country.

With respect to the elements not included in the application or applications whose priority is claimed, the filing of the subsequent application shall give rise to a right of priority under ordinary conditions.

G.

(1) If the examination reveals that an application for a patent contains more than one invention, the applicant may divide the application into a certain number of divisional applications and preserve as the date of each the date of the initial application and the benefit of the right of priority, if any.

(2) The applicant may also, on his own initiative, divide a patent application and preserve as the date of each divisional application the date of the initial application and the benefit of the right of priority, if any. Each country of the Union shall have the right to determine the conditions under which such division shall be authorized.

H.

Priority may not be refused on the ground that certain elements of the invention for which priority is claimed do not appear among the claims formulated in the application in the country of origin, provided that the application documents as a whole specifically disclose such elements.

I.

(1) Applications for inventors’ certificates filed in a country in which applicants have the right to apply at their own option either for a patent or for an inventor’s certificate shall give rise to the right of priority provided for by this Article, under the same conditions and with the same effects as applications for patents.

(2) In a country in which applicants have the right to apply at their own option either for a patent or for an inventor’s certificate, an applicant for an inventor’s certificate shall, in accordance with the provisions of this Article relating to patent applications, enjoy a right of priority based on an application for a patent, a utility model, or an inventor’s certificate.

 

Article 4bis. Patents: Independence of Patents Obtained for the Same Invention in Different Countries

(1) Patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not.

(2) The foregoing provision is to be understood in an unrestricted sense, in particular, in the sense that patents applied for during the period of priority are independent, both as regards the grounds for nullity and forfeiture, and as regards their normal duration.

(3) The provision shall apply to all patents existing at the time when it comes into effect.

(4) Similarly, it shall apply, in the case of the accession of new countries, to patents in existence on either side at the time of accession.

(5) Patents obtained with the benefit of priority shall, in the various countries of the Union, have a duration equal to that which they would have, had they been applied for or granted without the benefit of priority.

 

Article 4ter. Patents: Mention of the Inventor in the Patent

The inventor shall have the right to be mentioned as such in the patent.

Article 4quater. Patents: Patentability in Case of Restrictions of Sale by Law

The grant of a patent shall not be refused and a patent shall not be invalidated on the ground that the sale of the patented product or of a product obtained by means of a patented process is subject to restrictions or limitations resulting from the domestic law.

 

Article 5. A. Patents: Importation of Articles; Failure to Work or Insufficient Working; Compulsory Licenses

B. Industrial Designs: Failure to Work; Importation of Articles

C. Marks: Failure to Use; Different Forms; Use by Co-proprietors

D. Patents, Utility Models, Marks, Industrial Designs: Marking

A.

(1) Importation by the patentee into the country where the patent has been granted of articles manufactured in any of the countries of the Union shall not entail forfeiture of the patent.

(2) Each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work.

(3) Forfeiture of the patent shall not be provided for except in cases where the grant of compulsory licenses would not have been sufficient to prevent the said abuses. No proceedings for the forfeiture or revocation of a patent may be instituted before the expiration of two years from the grant of the first compulsory license.

(4) A compulsory license may not be applied for on the ground of failure to work or insufficient working before the expiration of a period of four years from the date of filing of the patent application or three years from the date of the grant of the patent, whichever period expires last; it shall be refused if the patentee justifies his inaction by legitimate reasons. Such a compulsory license shall be non-exclusive and shall not be transferable, even in the form of the grant of a sub-license, except with that part of the enterprise or goodwill which exploits such license.

(5) The foregoing provisions shall be applicable, mutatis mutandis, to utility models.

B.

The protection of industrial designs shall not, under any circumstance, be subject to any forfeiture, either by reason of failure to work or by reason of the importation of articles corresponding to those which are protected.

C.

(1) If, in any country, use of the registered mark is compulsory, the registration may be cancelled only after a reasonable period, and then only if the person concerned does not justify his inaction.

(2) Use of a trademark by the proprietor in a form differing in elements which do not alter the distinctive character of the mark in the form in which it was registered in one of the countries of the Union shall not entail invalidation of the registration and shall not diminish the protection granted to the mark.

(3) Concurrent use of the same mark on identical or similar goods by industrial or commercial establishments considered as co-proprietors of the mark according to the provisions of the domestic law of the country where protection is claimed shall not prevent registration or diminish in any way the protection granted to the said mark in any country of the Union, provided that such use does not result in misleading the public and is not contrary to the public interest.

D.

No indication or mention of the patent, of the utility model, of the registration of the trademark, or of the deposit of the industrial design, shall be required upon the goods as a condition of recognition of the right to protection.

 

Article 5bis. All Industrial Property Rights: Period of Grace for the Payment of Fees for the Maintenance of Rights;

Patents: Restoration

(1) A period of grace of not less than six months shall be allowed for the payment of the fees prescribed for the maintenance of industrial property rights, subject, if the domestic legislation so provides, to the payment of a surcharge.

(2) The countries of the Union shall have the right to provide for the restoration of patents which have lapsed by reason of non-payment of fees.

 

Article 5ter. Patents: Patented Devices Forming Part of Vessels, Aircraft, or Land Vehicles

In any country of the Union the following shall not be considered as infringements of the rights of a patentee:

(i) the use on board vessels of other countries of the Union of devices forming the subject of his patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of the said country, provided that such devices are used there exclusively for the needs of the vessel;

(ii) the use of devices forming the subject of the patent in the construction or operation of aircraft or land vehicles of other countries of the Union, or of accessories of such aircraft or land vehicles, when those aircraft or land vehicles temporarily or accidentally enter the said country.

 

Article 5quater. Patents: Importation of Products Manufactured by a Process Patented in the Importing Country

When a product is imported into a country of the Union where there exists a patent protecting a process of manufacture of the said product, the patentee shall have all the rights, with regard to the imported product, that are accorded to him by the legislation of the country of importation, on the basis of the process patent, with respect to products manufactured in that country.

 

Article 5quinquies. Industrial Designs

Industrial designs shall be protected in all the countries of the Union.

 

Article 6. Marks: Conditions of Registration; Independence of Protection of Same Mark in Different Countries

(1) The conditions for the filing and registration of trademarks shall be determined in each country of the Union by its domestic legislation.

(2) However, an application for the registration of a mark filed by a national of a country of the Union in any country of the Union may not be refused, nor may a registration be invalidated, on the ground that filing, registration, or renewal, has not been effected in the country of origin.

(3) A mark duly registered in a country of the Union shall be regarded as independent of marks registered in the other countries of the Union, including the country of origin.

 

Article 6bis. Marks: Well-Known Marks

(1) The countries of the Union undertake, ex officio if their legislation so permits, or at the request of an interested party, to refuse or to cancel the registration, and to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods. These provisions shall also apply when the essential part of the mark constitutes a reproduction of any such well-known mark or an imitation liable to create confusion therewith.

(2) A period of at least five years from the date of registration shall be allowed for requesting the cancellation of such a mark. The countries of the Union may provide for a period within which the prohibition of use must be requested.

(3) No time limit shall be fixed for requesting the cancellation or the prohibition of the use of marks registered or used in bad faith.

 

Article 6ter. Marks: Prohibitions concerning State Emblems, Official Hallmarks, and Emblems of Intergovernmental Organizations

(1)

(a) The countries of the Union agree to refuse or to invalidate the registration, and to prohibit by appropriate measures the use, without authorization by the competent authorities, either as trademarks or as elements of trademarks, of armorial bearings, flags, and other State emblems, of the countries of the Union, official signs and hallmarks indicating control and warranty adopted by them, and any imitation from a heraldic point of view.

(b) The provisions of subparagraph (a), above, shall apply equally to armorial bearings, flags, other emblems, abbreviations, and names, of international intergovernmental organizations of which one or more countries of the Union are members, with the exception of armorial bearings, flags, other emblems, abbreviations, and names, that are already the subject of international agreements in force, intended to ensure their protection.

(c) No country of the Union shall be required to apply the provisions of subparagraph (b), above, to the prejudice of the owners of rights acquired in good faith before the entry into force, in that country, of this Convention. The countries of the Union shall not be required to apply the said provisions when the use or registration referred to in subparagraph (a), above, is not of such a nature as to suggest to the public that a connection exists between the organization concerned and the armorial bearings, flags, emblems, abbreviations, and names, or if such use or registration is probably not of such a nature as to mislead the public as to the existence of a connection between the user and the organization.

(2) Prohibition of the use of official signs and hallmarks indicating control and warranty shall apply solely in cases where the marks in which they are incorporated are intended to be used on goods of the same or a similar kind.

(3)

(a) For the application of these provisions, the countries of the Union agree to communicate reciprocally, through the intermediary of the International Bureau, the list of State emblems, and official signs and hallmarks indicating control and warranty, which they desire, or may hereafter desire, to place wholly or within certain limits under the protection of this Article, and all subsequent modifications of such list. Each country of the Union shall in due course make available to the public the lists so communicated. Nevertheless such communication is not obligatory in respect of flags of States.

(b) The provisions of subparagraph (b) of paragraph (1) of this Article shall apply only to such armorial bearings, flags, other emblems, abbreviations, and names, of international intergovernmental organizations as the latter have communicated to the countries of the Union through the intermediary of the International Bureau.

(4) Any country of the Union may, within a period of twelve months from the receipt of the notification, transmit its objections, if any, through the intermediary of the International Bureau, to the country or international intergovernmental organization concerned.

(5) In the case of State flags, the measures prescribed by paragraph (1), above, shall apply solely to marks registered after November 6, 1925.

(6) In the case of State emblems other than flags, and of official signs and hallmarks of the countries of the Union, and in the case of armorial bearings, flags, other emblems, abbreviations, and names, of international intergovernmental organizations, these provisions shall apply only to marks registered more than two months after receipt of the communication provided for in paragraph (3), above.

(7) In cases of bad faith, the countries shall have the right to cancel even those marks incorporating State emblems, signs, and hallmarks, which were registered before November 6, 1925.

(8) Nationals of any country who are authorized to make use of the State emblems, signs, and hallmarks, of their country may use them even if they are similar to those of another country.

(9) The countries of the Union undertake to prohibit the unauthorized use in trade of the State armorial bearings of the other countries of the Union, when the use is of such a nature as to be misleading as to the origin of the goods.

(10) The above provisions shall not prevent the countries from exercising the right given in paragraph (3) of Article 6quinquies, Section B, to refuse or to invalidate the registration of marks incorporating, without authorization, armorial bearings, flags, other State emblems, or official signs and hallmarks adopted by a country of the Union, as well as the distinctive signs of international intergovernmental organizations referred to in paragraph (1), above.

 

Article 6quater. Marks: Assignment of Marks

(1) When, in accordance with the law of a country of the Union, the assignment of a mark is valid only if it takes place at the same time as the transfer of the business or goodwill to which the mark belongs, it shall suffice for the recognition of such validity that the portion of the business or goodwill located in that country be transferred to the assignee, together with the exclusive right to manufacture in the said country, or to sell therein, the goods bearing the mark assigned.

(2) The foregoing provision does not impose upon the countries of the Union any obligation to regard as valid the assignment of any mark the use of which by the assignee would, in fact, be of such a nature as to mislead the public, particularly as regards the origin, nature, or essential qualities, of the goods to which the mark is applied.

 

Article 6quinquies. Marks: Protection of Marks Registered in One Country of the Union in the Other Countries of the Union

A.

(1) Every trademark duly registered in the country of origin shall be accepted for filing and protected as is in the other countries of the Union, subject to the reservations indicated in this Article. Such countries may, before proceeding to final registration, require the production of a certificate of registration in the country of origin, issued by the competent authority. No authentication shall be required for this certificate.

(2) Shall be considered the country of origin the country of the Union where the applicant has a real and effective industrial or commercial establishment, or, if he has no such establishment within the Union, the country of the Union where he has his domicile, or, if he has no domicile within the Union but is a national of a country of the Union, the country of which he is a national.

B.

Trademarks covered by this Article may be neither denied registration nor invalidated except in the following cases:

(i) when they are of such a nature as to infringe rights acquired by third parties in the country where protection is claimed;

(ii) when they are devoid of any distinctive character, or consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, place of origin, of the goods, or the time of production, or have become customary in the current language or in the bona fide and established practices of the trade of the country where protection is claimed;

(iii) when they are contrary to morality or public order and, in particular, of such a nature as to deceive the public. It is understood that a mark may not be considered contrary to public order for the sole reason that it does not conform to a provision of the legislation on marks, except if such provision itself relates to public order.

This provision is subject, however, to the application of Article 10bis.

C.

(1) In determining whether a mark is eligible for protection, all the factual circumstances must be taken into consideration, particularly the length of time the mark has been in use.

(2) No trademark shall be refused in the other countries of the Union for the sole reason that it differs from the mark protected in the country of origin only in respect of elements that do not alter its distinctive character and do not affect its identity in the form in which it has been registered in the said country of origin.

D.

No person may benefit from the provisions of this Article if the mark for which he claims protection is not registered in the country of origin.

E.

However, in no case shall the renewal of the registration of the mark in the country of origin involve an obligation to renew the registration in the other countries of the Union in which the mark has been registered.

F.

The benefit of priority shall remain unaffected for applications for the registration of marks filed within the period fixed by Article 4, even if registration in the country of origin is effected after the expiration of such period.

 

Article 6sexies. Marks: Service Marks

The countries of the Union undertake to protect service marks. They shall not be required to provide for the registration of such marks.

 

Article 6septies. Marks: Registration in the Name of the Agent or Representative of the Proprietor Without the Latter’s Authorization

(1) If the agent or representative of the person who is the proprietor of a mark in one of the countries of the Union applies, without such proprietor’s authorization, for the registration of the mark in his own name, in one or more countries of the Union, the proprietor shall be entitled to oppose the registration applied for or demand its cancellation or, if the law of the country so allows, the assignment in his favor of the said registration, unless such agent or representative justifies his action.

(2) The proprietor of the mark shall, subject to the provisions of paragraph (1), above, be entitled to oppose the use of his mark by his agent or representative if he has not authorized such use.

(3) Domestic legislation may provide an equitable time limit within which the proprietor of a mark must exercise the rights provided for in this Article.

 

Article 7. Marks: Nature of the Goods to which the Mark is Applied

The nature of the goods to which a trademark is to be applied shall in no case form an obstacle to the registration of the mark.

 

Article 7bis. Marks: Collective Marks

(1) The countries of the Union undertake to accept for filing and to protect collective marks belonging to associations the existence of which is not contrary to the law of the country of origin, even if such associations do not possess an industrial or commercial establishment.

(2) Each country shall be the judge of the particular conditions under which a collective mark shall be protected and may refuse protection if the mark is contrary to the public interest.

(3) Nevertheless, the protection of these marks shall not be refused to any association the existence of which is not contrary to the law of the country of origin, on the ground that such association is not established in the country where protection is sought or is not constituted according to the law of the latter country.

 

Article 8. Trade Names

A trade name shall be protected in all the countries of the Union without the obligation of filing or registration, whether or not it forms part of a trademark.

 

Article 9. Marks, Trade Names: Seizure, on Importation, etc., of Goods Unlawfully Bearing a Mark or Trade Name

(1) All goods unlawfully bearing a trademark or trade name shall be seized on importation into those countries of the Union where such mark or trade name is entitled to legal protection.

(2) Seizure shall likewise be effected in the country where the unlawful affixation occurred or in the country into which the goods were imported.

(3) Seizure shall take place at the request of the public prosecutor, or any other competent authority, or any interested party, whether a natural person or a legal entity, in conformity with the domestic legislation of each country.

(4) The authorities shall not be bound to effect seizure of goods in transit.

(5) If the legislation of a country does not permit seizure on importation, seizure shall be replaced by prohibition of importation or by seizure inside the country.

(6) If the legislation of a country permits neither seizure on importation nor prohibition of importation nor seizure inside the country, then, until such time as the legislation is modified accordingly, these measures shall be replaced by the actions and remedies available in such cases to nationals under the law of such country.

 

Article 10. False Indications: Seizure, on Importation, etc., of Goods Bearing False Indications as to their Source or the Identity of the Producer

(1) The provisions of the preceding Article shall apply in cases of direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer, or merchant.

(2) Any producer, manufacturer, or merchant, whether a natural person or a legal entity, engaged in the production or manufacture of or trade in such goods and established either in the locality falsely indicated as the source, or in the region where such locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party.

 

Article 10bis. Unfair Competition

(1) The countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.

(2) Any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

(3) The following in particular shall be prohibited:

(i) all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor;

(ii) false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor;

(iii) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.

 

Article 10ter. Marks, Trade Names, False Indications, Unfair Competition: Remedies, Right to Sue

(1) The countries of the Union undertake to assure to nationals of the other countries of the Union appropriate legal remedies effectively to repress all the acts referred to in Articles 9, 10, and 10bis.

(2) They undertake, further, to provide measures to permit federations and associations representing interested industrialists, producers, or merchants, provided that the existence of such federations and associations is not contrary to the laws of their countries, to take action in the courts or before the administrative authorities, with a view to the repression of the acts referred to in Articles 9, 10, and 10bis, in so far as the law of the country in which protection is claimed allows such action by federations and associations of that country.

 

Article 11. Inventions, Utility Models, Industrial Designs, Marks: Temporary Protection at Certain International Exhibitions

(1) The countries of the Union shall, in conformity with their domestic legislation, grant temporary protection to patentable inventions, utility models, industrial designs, and trademarks, in respect of goods exhibited at official or officially recognized international exhibitions held in the territory of any of them.

(2) Such temporary protection shall not extend the periods provided by Article 4. If, later, the right of priority is invoked, the authorities of any country may provide that the period shall start from the date of introduction of the goods into the exhibition.

(3) Each country may require, as proof of the identity of the article exhibited and of the date of its introduction, such documentary evidence as it considers necessary.

 

Article 12. Special National Industrial Property Services

(1) Each country of the Union undertakes to establish a special industrial property service and a central office for the communication to the public of patents, utility models, industrial designs, and trademarks.

(2) This service shall publish an official periodical journal. It shall publish regularly:

(a) the names of the proprietors of patents granted, with a brief designation of the inventions patented;

(b) the reproductions of registered trademarks.

 

Article 13. Assembly of the Union

(1)

(a) The Union shall have an Assembly consisting of those countries of the Union which are bound by Articles 13 to 17.

(b) The Government of each country shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Government which has appointed it.

(2)

(a) The Assembly shall:

(i) deal with all matters concerning the maintenance and development of the Union and the implementation of this Convention;

(ii) give directions concerning the preparation for conferences of revision to the International Bureau of Intellectual Property (hereinafter designated as “the International Bureau”) referred to in the Convention establishing the World Intellectual Property Organization (hereinafter designated as “the Organization”), due account being taken of any comments made by those countries of the Union which are not hound by Articles 13 to 17;

(iii) review and approve the reports and activities of the Director General of the Organization concerning the Union, and give him all necessary instructions concerning matters within the competence of the Union;

(iv) elect the members of the Executive Committee of the Assembly;

(v) review and approve the reports and activities of its Executive Committee, and give instructions to such Committee;

(vi) determine the program and adopt the biennial budget of the Union, and approve its final accounts;

(vii) adopt the financial regulations of the Union;

(viii) establish such committees of experts and working groups as it deems appropriate to achieve the objectives of the Union;

(ix) determine which countries not members of the Union and which intergovernmental and international nongovernmental organizations shall be admitted to its meetings as observers;

(x) adopt amendments to Articles 13 to 17;

(xi) take any other appropriate action designed to further the objectives of the Union;

(xii) perform such other functions as are appropriate under this Convention;

(xiii) subject to its acceptance, exercise such rights as are given to it in the Convention establishing the Organization.

(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Assembly shall make its decisions after having heard the advice of the Coordination Committee of the Organization.

(3)

(a) Subject to the provisions of subparagraph (b), a delegate may represent one country only.

(b) Countries of the Union grouped under the terms of a special agreement in a common office possessing for each of them the character of a special national service of industrial property as referred to in Article 12 may be jointly represented during discussions by one of their number.

(4)

(a) Each country member of the Assembly shall have one vote.

(b) One-half of the countries members of the Assembly shall constitute a quorum.

(c) Notwithstanding the provisions of subparagraph (b), if, in any session, the number of countries represented is less than one-half but equal to or more than one-third of the countries members of the Assembly, the Assembly may make decisions but, with the exception of decisions concerning its own procedure, all such decisions shall take effect only if the conditions, set forth hereinafter are fulfilled. The International Bureau shall communicate the said decisions to the countries members of the Assembly which were not represented and shall invite them to express in writing their vote or abstention within a period of three months from the date of the communication. If, at the expiration of this period, the number of countries having thus expressed their vote or abstention attains the number of countries which was lacking for attaining the quorum in the session itself, such decisions shall take effect provided that at the same time the required majority still obtains.

(d) Subject to the provisions of Article 17(2), the decisions of the Assembly shall require two-thirds of the votes cast.

(e) Abstentions shall not be considered as votes.

(5)

(a) Subject to the provisions of subparagraph (b), a delegate may vote in the name of one country only.

(b) The countries of the Union referred to in paragraph (3)(b) shall, as a general rule, endeavor to send their own delegations to the sessions of the Assembly. If, however, for exceptional reasons, any such country cannot send its own delegation, it may give to the delegation of another such country the power to vote in its name, provided that each delegation may vote by proxy for one country only. Such power to vote shall be granted in a document signed by the Head of State or the competent Minister.

(6) Countries of the Union not members of the Assembly shall be admitted to the meetings of the latter as observers.

(7)

(a) The Assembly shall meet once in every second calendar year in ordinary session upon convocation by the Director General and, in the absence of exceptional circumstances, during the same period and at the same place as the General Assembly of the Organization.

(b) The Assembly shall meet in extraordinary session upon convocation by the Director General, at the request of the Executive Committee or at the request of one-fourth of the countries members of the Assembly.

(8) The Assembly shall adopt its own rules of procedure.

 

Article 14. Executive Committee

(1) The Assembly shall have an Executive Committee.

(2)

(a) The Executive Committee shall consist of countries elected by the Assembly from among countries members of the Assembly. Furthermore, the country on whose territory the Organization has its headquarters shall, subject to the provisions of Article 16(7)(b), have an ex officio seat on the Committee.

(b) The Government of each country member of the Executive Committee shall be represented by one delegate, who may be assisted by alternate delegates, advisors, and experts.

(c) The expenses of each delegation shall be borne by the Government which has appointed it.

(3) The number of countries members of the Executive Committee shall correspond to one-fourth of the number of countries members of the Assembly. In establishing the number of seats to be filled, remainders after division by four shall be disregarded.

(4) In electing the members of the Executive Committee, the Assembly shall have due regard to an equitable geographical distribution and to the need for countries party to the Special Agreements established in relation with the Union to be among the countries constituting the Executive Committee.

(5)

(a) Each member of the Executive Committee shall serve from the close of the session of the Assembly which elected it to the close of the next ordinary session of the Assembly.

(b) Members of the Executive Committee may be re-elected, but only up to a maximum of two-thirds of such members.

(c) The Assembly shall establish the details of the rules governing the election and possible re-election of the members of the Executive Committee.

(6)

(a) The Executive Committee shall:

(i) prepare the draft agenda of the Assembly;

(ii) submit proposals to the Assembly in respect of the draft program and biennial budget of the Union prepared by the Director General;

(iii) [deleted]

(iv) submit, with appropriate comments, to the Assembly the periodical reports of the Director General and the yearly audit reports on the accounts;

(v) take all necessary measures to ensure the execution of the program of the Union by the Director General, in accordance with the decisions of the Assembly and having regard to circumstances arising between two ordinary sessions of the Assembly;

(vi) perform such other functions as are allocated to it under this Convention.

(b) With respect to matters which are of interest also to other Unions administered by the Organization, the Executive Committee shall make its decisions after having heard the advice of the Coordination Committee of the Organization.

(7)

(a) The Executive Committee shall meet once a year in ordinary session upon convocation by the Director General, preferably during the same period and at the same place as the Coordination Committee of the Organization.

(b) The Executive Committee shall meet in extraordinary session upon convocation by the Director General, either on his own initiative, or at the request of its Chairman or one-fourth of its members.

(8)

(a) Each country member of the Executive Committee shall have one vote.

(b) One-half of the members of the Executive Committee shall constitute a quorum.

(c) Decisions shall be made by a simple majority of the votes cast.

(d) Abstentions shall not be considered as votes.

(e) A delegate may represent, and vote in the name of, one country only.

(9) Countries of the Union not members of the Executive Committee shall be admitted to its meetings as observers.

(10) The Executive Committee shall adopt its own rules of procedure.

 

Article 15. International Bureau

(1)

(a) Administrative tasks concerning the Union shall be performed by the International Bureau, which is a continuation of the Bureau of the Union united with the Bureau of the Union established by the International Convention for the Protection of Literary and Artistic Works.

(b) In particular, the International Bureau shall provide the secretariat of the various organs of the Union.

(c) The Director General of the Organization shall be the chief executive of the Union and shall represent the Union.

(2) The International Bureau shall assemble and publish information concerning the protection of industrial property. Each country of the Union shall promptly communicate to the International Bureau all new laws and official texts concerning the protection of industrial property. Furthermore, it shall furnish the International Bureau with all the publications of its industrial property service of direct concern to the protection of industrial property which the International Bureau may find useful in its work.

(3) The International Bureau shall publish a monthly periodical.

(4) The International Bureau shall, on request, furnish any country of the Union with information on matters concerning the protection of industrial property.

(5) The International Bureau shall conduct Studies, and shall provide services, designed to facilitate the protection of industrial property.

(6) The Director General and any staff member designated by him shall participate, without the right to vote, in all meetings of the Assembly, the Executive Committee, and any other committee of experts or working group. The Director General, or a staff member designated by him, shall be ex officio secretary of these bodies.

(7)

(a) The International Bureau shall, in accordance with the directions of the Assembly and in cooperation with the Executive Committee, make the preparations for the conferences of revision of the provisions of the Convention other than Articles 13 to 17.

(b) The International Bureau may consult with intergovernmental and international non-governmental organizations concerning preparations for conferences of revision.

(c) The Director General and persons designated by him shall take part, without the right to vote, in the discussions at these conferences.

(8) The International Bureau shall carry out any other tasks assigned to it.

 

Article 16. Finances

(1)

(a) The Union shall have a budget.

(b) The budget of the Union shall include the income and expenses proper to the Union, its contribution to the budget of expenses common to the Unions, and, where applicable, the sum made available to the budget of the Conference of the Organization.

(c) Expenses not attributable exclusively to the Union but also to one or more other Unions administered by the Organization shall be considered as expenses common to the Unions. The share of the Union in such common expenses shall be in proportion to the interest the Union has in them.

(2) The budget of the Union shall be established with due regard to the requirements of coordination with the budgets of the other Unions administered by the Organization.

(3) The budget of the Union shall be financed from the following sources:

(i) contributions of the countries of the Union;

(ii) fees and charges due for services rendered by the International Bureau in relation to the Union;

(iii) sale of, or royalties on, the publications of the International Bureau concerning the Union;

(iv) gifts, bequests, and subventions;

(v) rents, interests, and other miscellaneous income.

(4)

(a) For the purpose of establishing its contribution towards the budget, each country of the Union shall belong to a class, and shall pay its annual contributions on the basis of a number of units fixed as follows:

Class I ……………. 25

Class II …………… 20

Class III ………….. 15

Class IV ………….. 10

Class V …………….. 5

Class VI ……………. 3

Class VII …………… 1

 

(b) Unless it has already done so, each country shall indicate, concurrently with depositing its instrument of ratification or accession, the class to which it wishes to belong. Any country may change class. If it chooses a lower class, the country must announce such change to the Assembly at one of its ordinary sessions. Any such change shall take effect at the beginning of the calendar year following the said session.

(c) The annual contribution of each country shall be an amount in the same proportion to the total sum to be contributed to the budget of the Union by all countries as the number of its units is to the total of the units of all contributing countries.

(d) Contributions shall become due on the first of January of each year.

(e) A country which is in arrears in the payment of its contributions may not exercise its right to vote in any of the organs of the Union of which it is a member if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. However, any organ of the Union may allow such a country to continue to exercise its right to vote in that organ if, and as long as, it is satisfied that the delay in payment is due to exceptional and unavoidable circumstances.

(f) If the budget is not adopted before the beginning of a new financial period, it shall be at the same level as the budget of the previous year, as provided in the financial regulations.

(5) The amount of the fees and charges due for services rendered by the International Bureau in relation to the Union shall be established, and shall be reported to the Assembly and the Executive Committee, by the Director General.

(6)

(a) The Union shall have a working capital fund which shall be constituted by a single payment made by each country of the Union. If the fund becomes insufficient, the Assembly shall decide to increase it.

(b) The amount of the initial payment of each country to the said fund or of its participation in the increase thereof shall be a proportion of the contribution of that country for the year in which the fund is established or the decision to increase it is made.

(c) The proportion and the terms of payment shall be fixed by the Assembly on the proposal of the Director General and after it has heard the advice of the Coordination Committee of the Organization.

(7)

(a) In the headquarters agreement concluded with the country on the territory of which the Organization has its headquarters, it shall be provided that, whenever the working capital fund is insufficient, such country shall grant advances. The amount of these advances and the conditions on which they are granted shall be the subject of separate agreements, in each case, between such country and the Organization. As long as it remains under the obligation to grant advances, such country shall have an ex officio seat on the Executive Committee.

(b) The country referred to in subparagraph (a) and the Organization shall each have the right to denounce the obligation to grant advances, by written notification. Denunciation shall take effect three years after the end of the year in which it has been notified.

(8) The auditing of the accounts shall be effected by one or more of the countries of the Union or by external auditors, as provided in the financial regulations. They shall be designated, with their agreement, by the Assembly.

 

Article 17. Amendment of Articles 13 to 17

(1) Proposals for the amendment of Articles 13, 14, 15, 16, and the present Article, may be initiated by any country member of the Assembly, by the Executive Committee, or by the Director General. Such proposals shall be communicated by the Director General to the member countries of the Assembly at least six months in advance of their consideration by the Assembly.

(2) Amendments to the Articles referred to in paragraph (1) shall be adopted by the Assembly. Adoption shall require three-fourths of the votes cast, provided that any amendment to Article 13, and to the present paragraph, shall require four-fifths of the votes cast.

(3) Any amendment to the Articles referred to in paragraph (1) shall enter into force one month after written notifications of acceptance, effected in accordance with their respective constitutional processes, have been received by the Director General from three-fourths of the countries members of the Assembly at the time it adopted the amendment. Any amendment to the said Articles thus accepted shall bind all the countries which are members of the Assembly at the time the amendment enters into force, or which become members thereof at a subsequent date, provided that any amendment increasing the financial obligations of countries of the Union shall bind only those countries which have notified their acceptance of such amendment.

 

Article 18. Revision of Articles 1 to 12 and 18 to 30

(1) This Convention shall be submitted to revision with a view to the introduction of amendments designed to improve the system of the Union.

(2) For that purpose, conferences shall be held successively in one of the countries of the Union among the delegates of the said countries.

(3) Amendments to Articles 13 to 17 are governed by the provisions of Article 17.

 

Article 19. Special Agreements

It is understood that the countries of the Union reserve the right to make separately between themselves special agreements for the protection of industrial property, in so far as these agreements do not contravene the provisions of this Convention.

 

Article 20. Ratification or Accession by Countries of the Union; Entry Into Force

(1)

(a) Any country of the Union which has signed this Act may ratify it, and, if it has not signed it, may accede to it. Instruments of ratification and accession shall be deposited with the Director General.

(b) Any country of the Union may declare in its instrument of ratification or accession that its ratification or accession shall not apply:

(i) to Articles 1 to 12, or

(ii) to Articles 13 to 17.

(c) Any country of the Union which, in accordance with subparagraph (b), has excluded from the effects of its ratification or accession one of the two groups of Articles referred to in that subparagraph may at any later time declare that it extends the effects of its ratification or accession to that group of Articles. Such declaration shall be deposited with the Director General.

(2)

(a) Articles 1 to 12 shall enter into force, with respect to the first ten countries of the Union which have deposited instruments of ratification or accession without making the declaration permitted under paragraph (1)(b)(i), three months after the deposit of the tenth such instrument of ratification or accession.

(b) Articles 13 to 17 shall enter into force, with respect to the first ten countries of the Union which have deposited instruments of ratification or accession without making the declaration permitted under paragraph (1)(b)(ii), three months after the deposit of the tenth such instrument of ratification or accession.

(c) Subject to the initial entry into force, pursuant to the provisions of subparagraphs (a) and (b), of each of the two groups of Articles referred to in paragraph (1)(b)(i) and (ii), and subject to the provisions of paragraph (1)(b), Articles 1 to 17 shall, with respect to any country of the Union, other than those referred to in subparagraphs (a) and (b), which deposits an instrument of ratification or accession or any country of the Union which deposits a declaration pursuant to paragraph (1)(c), enter into force three months after the date of notification by the Director General of such deposit, unless a subsequent date has been indicated in the instrument or declaration deposited. In the latter case, this Act shall enter into force with respect to that country on the date thus indicated.

(3) With respect to any country of the Union which deposits an instrument of ratification or accession, Articles 18 to 30 shall enter into force on the earlier of the dates on which any of the groups of Articles referred to in paragraph (1)(b) enters into force with respect to that country pursuant to paragraph (2)(a), (b), or (c).

 

Article 21. Accession by Countries Outside the Union; Entry Into Force

(1) Any country outside the Union may accede to this Act and thereby become a member of the Union. Instruments of accession shall be deposited with the Director General.

(2)

(a) With respect to any country outside the Union which deposits its instrument of accession one month or more before the date of entry into force of any provisions of the present Act, this Act shall enter into force, unless a subsequent date has been indicated in the instrument of accession, on the date upon which provisions first enter into force pursuant to Article 20(2)(a) or (b); provided that:

(i) if Articles 1 to 12 do not enter into force on that date, such country shall, during the interim period before the entry into force of such provisions, and in substitution therefor, be bound by Articles 1 to 12 of the Lisbon Act,

(ii) if Articles 13 to 17 do not enter into force on that date, such country shall, during the interim period before the entry into force of such provisions, and in substitution therefor, be bound by Articles 13 and 14(3), (4), and (5), of the Lisbon Act.

If a country indicates a subsequent date in its instrument of accession, this Act shall enter into force with respect to that country on the date thus indicated.

(b) With respect to any country outside the Union which deposits its instrument of accession on a date which is subsequent to, or precedes by less than one month, the entry into force of one group of Articles of the present Act, this Act shall, subject to the proviso of subparagraph (a), enter into force three months after the date on which its accession has been notified by the Director General, unless a subsequent date has been indicated in the instrument of accession. In the latter case, this Act shall enter into force with respect to that country on the date thus indicated.

(3) With respect to any country outside the Union which deposits its instrument Of accession after the date of entry into force of the present Act in its entirety, or less than one month before such date, this Act shall enter into force three months after the date on which its accession has been notified by the Director General, unless a subsequent date has been indicated in the instrument of accession. In the latter case, this Act shall enter into force with respect to that country on the date thus indicated.

 

Article 22. Consequences of Ratification or Accession

Subject to the possibilities of exceptions provided for in Articles 20(1)(b) and 28(2), ratification or accession shall automatically entail acceptance of all the clauses and admission to all the advantages of this Act.

 

Article 23. Accession to Earlier Acts

After the entry into force of this Act in its entirety, a country may not accede to earlier Acts of this Convention.

 

Article 24. Territories

(1) Any country may declare in its instrument of ratification or accession, or may inform the Director General by written notification any time thereafter, that this Convention shall be applicable to all or part of those territories, designated in the declaration or notification, for the external relations of which it is responsible.

(2) Any country which has made such a declaration or given such a notification may, at any time, notify the Director General that this Convention shall cease to be applicable to all or part of such territories.

(3)

(a) Any declaration made under paragraph (1) shall take effect on the same date as the ratification or accession in the instrument of which it was included, and any notification given under such paragraph shall take effect three months after its notification by the Director General.

(b) Any notification given under paragraph (2) shall take effect twelve months after its receipt by the Director General.

 

Article 25. Implementation of the Convention on the Domestic Level

(1) Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessary to ensure the application of this Convention.

(2) It is understood that, at the time a country deposits its instrument of ratification or accession, it will be in a position under its domestic law to give effect to the provisions of this Convention.

 

Article 26. Denunciation

(1) This Convention shall remain in force without limitation as to time.

(2) Any country may denounce this Act by notification addressed to the Director General. Such denunciation shall constitute also denunciation of all earlier Acts and shall affect only the country making it, the Convention remaining in full force and effect as regards the other countries of the Union.

(3) Denunciation shall take effect one year after the day on which the Director General has received the notification.

(4) The right of denunciation provided by this Article shall not be exercised by any country before the expiration of five years from the date upon which it becomes a member of the Union.

 

Article 27. Application of Earlier Acts

(1) The present Act shall, as regards the relations between the countries to which it applies, and to the extent that it applies, replace the Convention of Paris of March 20, 1883 and the subsequent Acts of revision.

(2)

(a) As regards the countries to which the present Act does not apply, or does not apply in its entirety, but to which the Lisbon Act of October 31, 1958, applies, the latter shall remain in force in its entirety or to the extent that the present Act does not replace it by virtue of paragraph (1).

(b) Similarly, as regards the countries to which neither the present Act, nor portions thereof, nor the Lisbon Act applies, the London Act of June 2, 1934, shall remain in force in its entirety or to the extent that the present Act does not replace it by virtue of paragraph (1).

(c) Similarly, as regards the countries to which neither the present Act, nor portions thereof, nor the Lisbon Act, nor the London Act applies, the Hague Act of November 6, 1925, shall remain in force in its entirety or to the extent that the present Act does not replace it by virtue of paragraph (1).

(3) Countries outside the Union which become party to this Act shall apply it with respect to any country of the Union not party to this Act or which, although party to this Act, has made a declaration pursuant to Article 20(1)(b)(i). Such countries recognize that the said country of the Union may apply, in its relations with them, the provisions of the most recent Act to which it is party.

 

Article 28. Disputes

(1) Any dispute between two or more countries of the Union concerning the interpretation or application of this Convention, not settled by negotiation, may, by any one of the countries concerned, be brought before the International Court of Justice by application in conformity with the Statute of the Court, unless the countries concerned agree on some other method of settlement. The country bringing the dispute before the Court shall inform the International Bureau; the International Bureau shall bring the matter to the attention of the other countries of the Union.

(2) Each country may, at the time it signs this Act or deposits its instrument of ratification or accession, declare that it does not consider itself bound by the provisions of paragraph (1). With regard to any dispute between such country and any other country of the Union, the provisions of paragraph (1) shall not apply.

(3) Any country having made a declaration in accordance with the provisions of paragraph (2) may, at any time, withdraw its declaration by notification addressed to the Director General.

 

Article 29. Signature, Languages, Depositary Functions

(1)

(a) This Act shall be signed in a single copy in the French language and shall be deposited with the Government of Sweden.

(b) Official texts shall be established by the Director General, after consultation with the interested Governments, in the English, German, Italian, Portuguese, Russian and Spanish languages, and such other languages as the Assembly may designate.

(c) In case of differences of opinion on the interpretation of the various texts, the French text shall prevail.

(2) This Act shall remain open for signature at Stockholm until January 13, 1968.

(3) The Director General shall transmit two copies, certified by the Government of Sweden, of the signed text of this Act to the Governments of all countries of the Union and, on request, to the Government of any other country.

(4) The Director General shall register this Act with the Secretariat of the United Nations.

(5) The Director General shall notify the Governments of all countries of the Union of signatures, deposits of instruments of ratification or accession and any declarations included in such instruments or made pursuant to Article 20(1)(c), entry into force of any provisions of this Act, notifications of denunciation, and notifications pursuant to Article 24.

 

Article 30. Transitional Provisions

(1) Until the first Director General assumes office, references in this Act to the International Bureau of the Organization or to the Director General shall be deemed to be references to the Bureau of the Union or its Director, respectively.

(2) Countries of the Union not bound by Articles 13 to 17 may, until five years after the entry into force of the Convention establishing the Organization, exercise, if they so desire, the rights provided under Articles 13 to 17 of this Act as if they were bound by those Articles. Any country desiring to exercise such rights shall give written notification to that effect to the Director General; such notification shall be effective from the date of its receipt. Such countries shall be deemed to be members of the Assembly until the expiration of the said period.

(3) As long as all the countries of the Union have not become Members of the Organization, the International Bureau of the Organization shall also function as the Bureau of the Union, and the Director General as the Director of the said Bureau.

(4) Once all the countries of the Union have become Members of the Organization, the rights, obligations, and property, of the Bureau of the Union shall devolve on the International Bureau of the Organization.

Cection V. Civil code of Kyrgyz Republic

CIVIL CODE OF THE KYRGYZ REPUBLIC

SECTION V. INTELLECTUAL PROPERTY

Chapter 53. General Provisions

 

Article 1037. Objects of Intellectual Property

Objects of intellectual property shall include:

1) results of intellectual activities:

  • works of science, literature and art;
  • performances, phonograms, programs of a broadcasting organization;
  • programs of computer software and databases;
  • integrated circuits topographies;
  • inventions, utility models, industrial designs;
  • breeding achievements;
  • undisclosed information, including secrets of production (know-how);

2) means of individualization of participants of the civil turnover, goods, works and services;

  • trade names;
  • trademarks (service marks);
  • appellations of places of origin of goods;

(3) other results of intellectual activity and means of individualization of participants of civil turnover, goods, works and services in the cases stipulated by this Code or other laws.

 

Article 1038. Legal Protection of Intellectual Property Objects

Legal protection of intellectual property objects arises due to the fact of their creation or as a result of rendering legal protection by an authorized state body in the cases and in the procedure stipulated by this Code and by other statutes.

 

Article 1039. Personal Economic and Non-Economic Rights to the Objects of Intellectual Property

(1) Authors of the results of intellectual activity shall have personal non-economic and economic rights in respect of these results.

Personal non-economic rights shall belong to the author irrespective of his economic rights and shall be retained by him in the case when his economic rights to the results of intellectual activity are transferred to another person.

(2) Owners of the right to the means of individualization of participants of civil turnover, goods, works or services (hereinafter referred to as “individualization means”) shall have economic rights in respect of these means.

(3) The right of authorship (the right to be recognized as the author of intellectual activity result) shall be a personal non-economic right and may belong only to the person who created the result of intellectual activity.

The right of authorship shall be inalienable and non-transferable.

(4) If the result is created by joint creative labor of two or more persons, they shall be considered co-authors.

 

Article 1040. Exclusive Rights to the Objects of Intellectual Property

1) The owner of economic rights to the result of intellectual activity or individualization means shall enjoy the exclusive right to make legal use of this object of intellectual property at his discretion in any form and way.

Use of intellectual property objects by other persons in respect of which the owner of the right enjoys the exclusive right, shall be permitted only upon the consent of the owner of the right.

(2) The owner of the exclusive right to the intellectual property object shall have the right to delegate the right to another person fully or partially, to authorize another person to use an intellectual property object and to enjoy the right to dispose it at his discretion provided it does not collide with the rules of this Code and other laws.

(3) Limitation of the exclusive rights, including the cases of doing it through rendering possibility to use intellectual property objects by other persons, recognition of these rights to be ineffective and their annulment (cancellation), shall be permitted in the cases, limits and procedure stipulated by this Code and other laws.

Limitation of the exclusive rights shall be permitted provided that such a limitation does not cause damage to the normal use of an intellectual property object and does not infringe the legitimate interests of the right owners.

 

Article 1041. Transfer of the Exclusive Rights to Another Person

(1) The economic rights belonging to an owner of the exclusive rights to an intellectual property object, if it is not stipulated otherwise by this Code or other laws, may be transferred by the owner of the right fully or partially to another person on the basis of a contract as well as transferred on inheritance or in the procedure of succession in the course of reorganization of a legal entity-right owner.

(2) The transfer of economic rights on a contractual basis or their transfer in the procedure of universal legal succession does not entail transfer or limitation of the right of authorship and other personal non-economic rights. The terms of the contract on transfer or limitation of such rights are void.

The exclusive rights that are being transferred according to the contract, shall be defined in it. The rights which are not specified in the contract as alienable shall be assumed to be not transferred because otherwise has not been proved.

The rules of licensing agreement shall be applied to a contract, which stipulates granting of the exclusive right within the term of its effectiveness, to another person for a limited period of time.

 

Article 1042. Licensing Agreement

(1) According to the licensing agreement the party which holds the exclusive right to the result of intellectual activity or means of individualization (licenser) shall grant to other party (licensee) permission for the use of a certain object of intellectual property.

The licensing agreement shall be assumed to be compensable.

(2) The licensing agreement may stipulate the following to be granted to a licensee:

– the right to use an object of intellectual property with the right of a licenser to use it and the right to grant the license to other persons (non exclusive license);

– the right to use an object of intellectual property with the right of a licenser to use it within the part not transferred to the licensee to other persons (exclusive license);

– other types of license allowed by the law.

Unless otherwise provided in the licensing agreement, the license shall be presumed to be (non exclusive).

(3) An agreement under which a licensee grants the right to use the object of intellectual property to another person is considered to be sub-license agreement. The licensee has the right to conclude a sub-license agreement in the cases stipulated by the licensing agreement.

Responsibility to the licenser for actions of a sub-licensee shall be carried by the licensee unless the licensing agreement stipulates otherwise.

 

Article 1043. The Agreement on Creation and Use the Results of Intellectual Activity

(1) According to the agreement on creation and use the results of intellectual activity the author may assume an obligation to create in the future a work, invention or other result of intellectual activity and grant to the client, who is not his employer, the exclusive rights to use this result.

Such an agreement must determine the nature of the result of intellectual activity which is subject to creation, as well as purposes or methods of its use.

(2) An agreement binding the author to grant to any person the exclusive rights to use any results of intellectual activity, which this author will create in the future shall be deemed void.

Conditions of the agreement on creation and use the results of intellectual property limiting the author to create the results of intellectual activity of certain type or in certain area in the future shall be deemed void.

 

Article 1044. The Exclusive Right and Property Right

The exclusive right to the result of intellectual property or means of individualization shall exist irrespective of property right to the material object in which such result or means of individualization are expressed.

 

Article 1045. .Effective Term of the Exclusive Right to the Objects of Intellectual Property

(1) The exclusive right to the objects of intellectual activity shall be effective for the term established by this Code or other laws.

(2) Personal non economic rights in respect of objects of intellectual property shall be effective without time-limits.

(3) In the cases stipulated by the law, validity of the exclusive right to the objects of intellectual property may be terminated in the result of failure to use it within certain period.

 

Article 1046. Methods of Protection of the Exclusive Rights to the Objects of Intellectual Property

(1) Protection of the exclusive rights to the objects of intellectual property is implemented by the methods stipulated in Article 11 of this Code. Protection of the exclusive rights may be implemented by the following methods:

– withdrawal of material objects with the help of which the exclusive rights are violated and material objects created in the result of such violation;

– obligatory publication on the violation committed, with the inclusion of the information as to who owns the violated right;

– other methods stipulated by the law.

(2) In the case of violation the agreement on creation and use the results of intellectual activity and means of individualization, general rules on the responsibility for violation of obligations shall be applied.

 

Chapter 54. Copyright

 

Article 1047. Works Protected by Copyright (Objects of Copyright)

(1) The copyright shall extend to the works of science, literature and art which are the result of creative activity, irrespective of the purpose, the merit and the manner of expression thereof.

(2) The work must be expressed in verbal, written or other objective form allowing the possibility of its perception.

The work in the written or otherwise expressed in a material carrier (manuscript, typewritten, musical score, recording with the help of technical means, including audio or video recording, fixation of the imprint in three dimensional or optical form, etc.) shall be deemed to have an objective form irrespective of its availability to the third persons.

Verbal and other work not expressed in a material carrier shall be deemed to have an objective form if it became available for perception by third persons (public recitation, public performance, etc.).

(3) The copyright shall extend both to promulgated and non-promulgated works.

(4) The copyright shall not extend to ideas, procedures, methods, concepts, principles, systems, proposed solutions, discoveries of objectively existing phenomena.

(5) No registration of work or observation of any other formalities shall be required for a copyright to emerge.

 

Article 1048. Types of Objects of Copyright

The following shall be referred to the objects of copyright:

? literary works (literary-artistic, scientific, educational, publicistic and etc.);

? dramatic and scenario works;

? musical works with text and without it;

? music-dramatic works;

? choreographic works and pantomime;

? audiovisual works (cinema, television and video films, slide films and other cinema, television and video works), radio works;

? works of painting, sculpture, graphics, design and other works of fine arts;

? works of applied art and stage designs;

? works of architecture, urban planning, garden and park designs;

? photographic works and works obtained by way analogous to photography;

? geographical, geological and other maps, plans and sketches and other works related to geography, topography and other sciences;

? computer software programs of all types including applied programs and operational systems;

? other works complying with the requirements established in Article 1047 of this Code.

 

Article 1049. Parts of a Work, Derivative and Composite Works

(1) The objects of copyright shall be deemed parts of works, their designations and derivative works which meet the requirements established in Article 1047 of this Code.

The derivative works are works that present re-works of other works (translations, processing, annotations, abstracts, resumes, surveys, screen versions, arrangements and other similar works of science, literature and art);

Composite works shall include compilations (encyclopedias, anthologies) and other composite works that present the result of creative labor due to their set and arrangement.

(2) Derivative and composite works shall be protected by copyright irrespective of whether or not the works, on which they are based on or which they include, are the objects of copyright.

 

Article 1050. Works and Similar Results of Activity Which are not Objects of Copyright

The following shall not be deemed to be objects of copyright:

? official documents (laws, resolutions, decisions, etc.), as well as official translations thereof;

? official symbols and signs (flags, emblems, armorial bearings, monetary signs, etc.);

? works of folklore;

? information on daily news or information on current events which are of the common press nature;

? results gained with the help of technical means for production of a work of a certain type, but without creative activity of a man directly intended to create an individual work.

 

Article 1051. Rights to the Drafts of Official Documents, Symbols and Signs

(1) The right of authorship to a draft of official document, symbol or mark shall belong to an individual who developed the draft (the developer).

Developers of the drafts of official documents, symbols or marks shall have the right to publish such drafts if this is not prohibited by the body on whose order the draft was developed. Developers have the right to specify their names when publishing the draft.

(2) A draft may be used by a competent body to prepare an official document without developer’s consent if the draft was published by him and sent to a relevant body.

In the course of preparation the official documents, symbols and marks on the basis of a draft, amendments and addenda may be introduced into it at the discretion of the body who prepares the official document, symbol or mark.

After the draft is approved by a competent body, it may be used without indication the name of developer.

 

Article 1052. The Author of a Work Presumption of Authorship

(1) A citizen by whose creative labor the work is produced, shall be recognized as an author of the work.

A person, whose name is specified as an author’s name at the first publication of a work, shall be considered its author unless otherwise is proved.

(2) Where a published work is anonymous or pseudonymous (except for the cases when the author’s pseudonym leaves no doubt in his identity) the publisher, whose name is indicated on the work, unless proved otherwise, shall be considered the author’s representative and have the right to defend and enforce the author’s rights. This provision shall remain in force until the author of such a work discloses his identity and claims his authorship.

 

Article 1053. Co-Authorship

(1) The copyright to the work, created by joint creative labor of two or more citizens, shall belong to co-authors mutually, irrespective of whether such a work constitutes an indivisible whole or consists of the parts each of which also has an independent standing.

Part of a work shall be recognized as having its independent standing if it can be used independently from other parts of this work.

Each of the co-authors shall have the right to use part of the work created by him and having its independent standing at his discretion, unless otherwise is stipulated by the agreement between them.

(2) As a rule the relations between the co-authors are determined on the basis of the agreement. If there is not such an agreement, the copyright to the work shall be exercised by all the authors jointly and the remuneration shall be distributed among them equally.

If the work of co-authors forms an indivisible whole, none of the co-authors shall be entitled to prohibit the exploitation of the work without valid reasons.

 

Article 1054. The Authors of Derivative and Composite Works

(1) The authors of derivative and composite works shall be considered the persons who processed other works, translators, compilers of collections and other composite works that present the result of creative labor due to the set or arrangement.

The author of a derivative and composite work shall enjoy the copyright to such a work provided that he observes with the rights of the author of the work which was subject to processing, translation or incorporation into a composite work.

(2) The copyright of creators of derivative and composite works shall not prevent other persons from creating their own derivative works on the basis of the works used previously.

 

Article 1055. Rights of Persons Organizing Creation of Works

(1) Persons who organize creation of works (encyclopedia publishers, film makers, producers, etc.) shall not be recognized as authors of the appropriate works.

However, in the cases stipulated by this Code or other laws, such persons shall acquire the exclusive rights to use these works.

(2) Publishers of encyclopedia, encyclopedic dictionaries, periodical and continuos collections of scientific works, newspapers, magazines and other periodicals shall enjoy the exclusive right to use these publications. The publisher has the right to specify his name or require such specification at any use of such publication.

(3) The authors of the works included into such publications shall retain the exclusive right to use their own works irrespective of the publication in whole, unless otherwise is stipulated by the agreement to create the work.

(4) Conclusion of the agreement to create an audio-visual work, including a movie, does not entail transfer of the exclusive right from the author of the work to the producer to reproduction, distribution, public performance, cable communication for public information, broadcasting or any other public use of the product, subtitling or dubbing of the text of the movie, unless otherwise is stipulated by the agreement. The rights mentioned shall be in force for the term of validity of a copyright to an audio-visual work.

Producer of an audio-visual work shall have the right to specify its (his) name or demand such a specification at any use of this work.

At a public display (show) of an audio-visual work the author of a musical work (either with text or without it) shall retain the right to remuneration for public performance of his musical work, unless the agreement provides otherwise.

Destruction of the final version of the movie (original, negative) without consent of the author and other holders of economic rights to a movie shall be prohibited.

 

Article 1056. The Mark of Protection Copyright

(1) In order to inform about his rights, the owner of the exclusive copyright may use a copyright protection mark on each copy of the work. The mark consists of three elements:

– the Latin letter “C” in a circle;

– the name of the holder of the exclusive copyright;

– the year of the first publication of the work.

(2) A person specified on the copyright protection mark shall be deemed to be the right holder, unless proved otherwise.

 

Article 1057. Personal Non-Economic Rights of the Author

(1) The author of a work shall have the following personal non-economic rights:

? right of authorship;

? right to the name;

? right to promulgation including the right to revoke;

? right to work inviolability;

(2) The agreement of the author with somebody and application of the author on revocation of personal non-economic rights shall be void.

 

Article 1058. Right of Authorship

The right of authorship to created work that belongs to an author (co-authors) shall exclude acknowledgment of authorship of other persons to the same work.

 

Article 1059. Right to the Name

The author shall have the exclusive right to use or authorize the use of the work under his name, pseudonym or anonymously (right to the name).

 

Article 1060. Right to Inviolability of the Work

(1) The author shall have the exclusive right to introduce amendments and addenda to his work and to protect his work from the introduction of amendments and addenda by somebody without consent of the author (right to inviolability of the work).

In publishing, public performance or other use of a work any amendments may be introduced to the work itself as well as its name and the author’s name only with the consent of the author.

It shall be prohibited to include illustrations, prefaces, epilogues, comments and any other explanations in the work without the consent of the author.

(2) After the death of an author the inviolability of the work shall be provided by the person indicated in the will and in the absence of such indications-by the heirs of the author as well as the persons responsible for protection of copyright in accordance with the Law.

 

Article 1061. Right to Promulgation of a Work

(1) The author shall have the right to open an access to the work for an indefinite group of people (right to publication).

(2) The work shall be deemed promulgated when the access to the work for an indefinite group of people is opened for the first time by the author or under his consent by means of publication, public performance, public demonstration of the work or its issuance otherwise.

The author shall have the right to refuse from the previously made decision on promulgation of the work (right to revoke) under condition that the losses, including lost profits caused to the persons entitled to use the work, are covered. If the work was promulgated the author must publicly inform about its revocation. He shall have the right to withdraw from circulation the earlier produced copies of the work at his own expense. These provisions shall also apply to the work products unless the agreement with the author stipulates otherwise.

 

Article 1062. Author’s Right to Use a Work

(1) An author shall have the exclusive rights to use the work in any form and way.

(2) The use of a work shall be considered its reproduction and distribution, as well as its sale in other ways, that, in particular shall include:

? public demonstration (exhibition, display) of the work;

? renting of a copy which is the material carrier of the work;

? public performance of the work;

? transmission of the work to air (broadcast by radio or TV) including transmission via cable or satellite;

? technical record of the work;

? reproduction of technical record of the work including by radio or television;

? translation or re-doing of the work for its further use;

? practical implementation of urban planning, architectural and design project.

Reproduction shall be considered repeated creation of an objective form of the work at least the one it had in the original form (publication of the work, copying of audio or video records etc.).

The distribution of the work shall include the sale, exchange, rent and other operations with copies of the work.

(3) When the copies of the work are alienated legally, their further distribution shall be allowed without consent of the author and without payment of author’s remuneration, except for the cases stipulated by the Law.

(4) The work shall be deemed used irrespective of whether it is used in order to get income (profit) or it is not the purpose of the use.

(5) The practical application of principles composing the content of a work (invention, technical, economic, organizational and other similar solutions) shall not be deemed as the use of a work in terms of copyright.

 

Article 1063. Disposal of the Right to Use a Work

(1) The author or other owner of the right may transfer all the rights to use the work to another person in accordance with the agreement, including the one concluded at public auctions (alienation of the right to use).

(2) The right to use the work shall be transferred in accordance with the procedure of universal legal succession.

(3) The right-holder may grant the permission (license) to another person to use the work within certain limits. The permission is required to use the work both in the original and revised version, in particular-in the form of translation, arrangement, etc.

(4) Every method of use of the work requires special permission of the right holder.

 

Article 1064. Limits of Copyrights

The exclusive rights of the author and other persons to use the work shall be allowed only in the cases stipulated by Articles 1065-1068 of this Code or other Laws.

The indicated restrictions shall be applied under condition that it neither damages the normal use of the work nor unreasonably infringes the legal interests of the author.

 

Article 1065. Reproduction of Alien Work for Personal Purposes

(1) The alien work which was publicly released shall be allowed to use for personal purposes without consent of the author and without payment of author’s remuneration provided that the normal use of the work is not damaged and the legal interests of the author are not infringed.

(2) The rules of the first paragraph of this Article shall not apply in relation to:

? the use of architectural works in the form of buildings and similar structures;

? the use of data bases or their significant parts;

? the use of computer software, except for the cases stipulated by the Law;

? reproduction of books (as a whole) and musical scores;

(3) In the first paragraph of this Article the Law shall have an exception to stipulate that if an audiovisual work or work fixed on a phonogram is used for personal purposes, the author, performer and producer of the record shall be entitled to the commensurate remuneration.

The remuneration for reproduction shall be paid in the form of deductions (interests) by the producers and importers of equipment (audio electronics, video-tape recorders, etc.) and material carriers (audio and (or) video tapes, cassettes, laser disks, compact disks, etc.) which are used for such reproduction.

 

Article 1066. Free Public Performance of Works

Public performance of the legally published musical compositions during the official religious and funeral ceremonies shall be allowed without consent of the author and without payment of author’s remuneration in the volume justified by the nature of such ceremonies.

 

Article 1067. Free Reproduction of Works for Judicial Purposes

The reproduction of works for the purposes of judicial and administrative work in the volume justified by the purpose of use shall be allowed without consent of the author and without the payment of author’s remuneration.

 

Article 1068. Right to the Work Product

(1) Personal non-economic rights to the work created in the course of execution of service assignment (work product) shall belong to the author of the work.

(2) The right to use the work product in the way set by the purpose of the assignment and limits preconditioned by it, shall belong to the person on whose assignment the work has been created and with whom the author has labor relations (employer) unless the agreement between him and the author stipulates otherwise. The employer shall be entitled to transfer this right of use to another person.

The agreement of the employer with the author may stipulate payment of remuneration to the author for the use of the work product and contain other conditions of its use.

(3) After ten years from the date of submission of the work and with the consent of the employer-earlier, the author shall obtain the full right to use the work and receive author’s remuneration, irrespective of the agreement concluded with the employer.

(4) The author’s right to use a work product in a way not conditioned by the purpose of the assignment, shall not be limited.

 

Article 1069. Validity of Copyright in the Territory of the Kyrgyz Republic

(1) The copyright to the work promulgated in the territory of the Kyrgyz Republic or non-promulgated but the original copy of which in any form is located in the territory of the Republic, shall be valid in the territory of the Kyrgyz Republic. In this case the copyright shall belong to the author and his heirs as well as other legal successors of the author irrespective of their citizenship.

(2) The copyright shall also belong to the citizens of the Kyrgyz Republic whose works are promulgated or exist in some objective form in the territory of a foreign state, as well as to their heirs and other legal successors.

(3) When the author is protected legally in accordance with the international agreements the fact of promulgation in the territory of a foreign state shall be determined in accordance with the provisions of the appropriate international agreement.

In order to protect the work in the territory of the Kyrgyz Republic the person who is recognized as the author of the work shall be determined in accordance with the Laws of the state where the work commenced being protected for the first time.

 

Article 1070. Commencement of Copyright Effectiveness

(1) The copyright to the work shall be in force from the date of shaping it into an objective form simple for perception by the third parties irrespective of promulgation. The copyright to the oral work shall be in force from the moment of its communication to the third persons.

(2) Where the work does not come under Article 1069 of this Code the copyright to such a work shall be protected from the moment of promulgation of the work provided that it carried out in the Kyrgyz Republic.

 

Article 1071. Term of Copyright Validity

(1) The copyright shall be valid during the whole life of the author and fifty years after his death, beginning from the first of January of the year following the year of the author’s death.

(2) The copyright to the work created in co-authorship shall be valid during the whole life of the co-authors and fifty years after the death of the last of co-author who outlived other co-authors.

(3) The copyright to the work issued for the first time under pseudonym or anonymously shall be valid during fifty years, beginning from January 1 of the year following the year when the work was issued.

Where the pseudonym or an anonymous author is disclosed, the terms indicated in the first paragraph of this Article shall be applied.

(4) During the period indicated in the first paragraph of this Article the copyright shall belong to the author’s heirs and be inherited. During the same terms the copyright shall belong to the legal successors who obtained this right on the basis of the contract with the author, his heirs and future legal successors.

(5) The copyright to the work issued for the first time during fifty years after the author’s death shall be valid during fifty years after its issue, beginning from January 1 of the year following the year when the work was issued.

(6) The authorship, name of the author and inviolability of the work shall be protected without fixed limits.

 

Article 1072 Transfer of a Work to the Public Domain

(1) Upon expiration of copyright validity term for the work, it shall become public domain.

The works which have never been protected in the territory of the Kyrgyz Republic shall be deemed to be public domain.

(2) The works which belong to public domain may be used freely by any person without payment of the author’s remuneration. The right of authorship, right to the name and the right to inviolability of the work shall be observed.

 

Article 1073. Author’s Contract

(1) The author or his heirs may transfer the right to use his work to another person by the way of conclusion of the author’s contract. The author’s contract shall be for pay.

(2) The author’s contract may be concluded for a prepared work or for the work which will be created by the author under his obligation (order contract). The author’s contract shall also be the contract permitting the use of the work within certain limits, which is concluded by the author or his heirs (author’s licensing contract).

 

Article 1074. Conditions of the Author’s Contract

(1) The author’s contract must stipulate:

– methods of use of the work (specific rights transferred in accordance with this contract);

– term and territory for which the right is transferred;

– the amount of remuneration and (or) procedure for determination the amount of remuneration for every method of use of the work, procedure and terms of payment.

If the author’s contract does not stipulate conditions on the term for which the right to use the work is transferred, the contract may be canceled by the author in five years from the date of its conclusion provided that the user is informed about it in writing, six month before the cancellation of the contract.

If the author’s contract does not stipulate the conditions about the territory on which the right to use the work is valid, the validity of the right transferred in accordance with the contract shall be limited by the territory of the Kyrgyz Republic.

(2) The subject of the author’s contract can not include the rights to use the work which are unknown at the moment of conclusion the contract.

(3) The amount of remuneration for the use of the work shall be specified in the author’s contract under the agreement of the parties.

Where the author’s contract on publication or other reproduction of performance of the work sets the fixed amount of the remuneration, the contract shall stipulate the maximum number of copies of the work.

The waiver of the author and his heirs from the right to remuneration is void.

(4) The rights transferred under the author’s contract can be transferred by any party of the contract fully or partially to other persons only if it is directly stipulated by such a contract.

 

Article 1075. Form of the Author’s Contract

The author’s contract shall be concluded in the written form except the cases stipulated by the Law.

 

Article 1076. Responsibility Under the Author’s Contract

The party which did not fulfill or improperly fulfilled the liabilities under the author’s contract must cover the losses caused to the other party including lost profit.

 

Article 1077. Term of Validity of the Author’s Licensing Contract

(1) The author’s licensing contract shall be valid during the period stipulated by it, but not longer than the term of the copyright validity.

(2) Irrespective of weather the term of validity is included in the author’s licensing contract or not, the author of the work and his heirs shall be entitled to cancel the contract unilaterally in ten years after the date of the conclusion of the contract, informing his contract agent about it in writing, six months prior to the cancellation of the contract. The author and his heirs shall have this right every ten years.

(3) The contract can stipulate the terms of use of the work, the violation of which results in the right of the legal successor to cancel the contract.

 

Article 1078. Liability for Illegal Use of a Work Without Contract

In the event the work is used without a contract concluded with the owner of the right, the violator is obliged to indemnify the losses caused to the right owner, including lost profit. The right owner shall be entitled to disgorge from the violator the revenues obtained in the result of the violation instead of the losses.

The use of the work in a way which is not stipulated by the author’s contract or after expiration of validity of such a contract shall be considered the use of the work without a contract.

 

Article 1079. Legal Regulation of Authors’ Relations

The authors’ relations shall be regulated by this Code and other legislation.

 

Chapter 55. Neighboring Rights

 

Article 1080. Object of Neighboring Rights

Neighboring rights shall extend to staging, performance, phonograms, programs of broadcasting and cable organizations.

 

Article 1081. Subjects of Neighboring Rights

(1) The right to performance shall belong to actors-performers, director-stagers, conductors. The right to use such a performance may be transferred to heirs and other legal successors.

(2) The right to record a performance shall belong to the person who created such a record or to his/her legal successors.

(3) The right to transmission shall belong to the broadcasting or cable organization that created a program or to its legal successors.

 

Article 1082. Mark of Protection of Neighboring Rights

The producer of a phonogram and the performer may, in order to inform about his rights, use the mark of protection neighboring rights which is placed on each copy of a phonogram and (or) on each sleeve and consists of three elements:

? a circled Latin letter “P”;

? name of the owner of the exclusive neighboring rights;

? year of the first publication of the recording.

 

Article 1083. Rights of a Performer

(1) The performer has the right for:

? indication of his/her name during performance, on copies of the record of performance or staging, in the course of broadcast or reproduction of the performance or staging;

? protection of the performance or staging against distortion;

? provision or permission to use the performance or staging;

(2) The right to use the performance or staging includes the right to allow:

? broadcast or cable transmission of the performance or staging;

? record of the performance or staging with the help of technical devices;

? broadcast and public reproduction of the produced record of a performance or staging;

? copying and distribution of the copies of a record of a performance and staging.

(3) Performers shall exercise their rights with the observation of the rights of authors of the works performed.

(4) Restrictions of the right to use or stage the performance shall be established by the law.

(5) The provisions of Article 1068 shall accordingly apply to the right to performance made in the course of execution of the work related assignment (work performance or staging).

 

Article 1084. Rights of a Producer of a Phonogram

(1) Producer of a phonogram and his legal successor shall have the exclusive right to this phonogram.

Exploitation of such a phonogram by other persons is allowed only upon the permission of the producer of a phonogram or his legal successor.

(2) Producer of a phonogram or his legal successor shall have the right to perform or to authorize the following:

? public reproduction of the phonogram;

? adaptation or any other transformation of the phonogram;

? distribution of copies of the phonogram (sale, rental etc.), including their transfer abroad;

? import copies of the phonogram.

(3) If the property right to the copy of the record of performance belongs not to its creator, the exclusive right to use the record, including its commercial rental belongs to the person who created the record.

(4) Restrictions of the rights of the producer of performance shall be established by the law.

(5) Holders of the right to the phonogram shall exercise their rights taking into account the rights of authors of the work and rights of the performers.

 

Article 1085. Rights of a Cable Broadcasting Organization

(1) Broadcasting company shall have the exclusive right to exploit its program in any form and give permission to third persons to use such a program.

Exploitation of the program by the third persons shall be done on the basis of a contract. The right-holder shall be entitled to remuneration for each type of use.

(2) Restrictions of the rights of a broadcasting company shall be established by the law.

(3) The broadcasting company shall implement its rights taking into account the rights of authors of works and rights of performers, and in certain cases – holders of the rights to the record of performance and other broadcasting companies.

 

Article 1086. Rights of a Cable Broadcasting Organization

Rights of the cable broadcasting organization shall be established as applicable to the rights of a broadcasting organization established by this Code and the law.

 

Article 1087. Responsibility for Non-Implementation or Inappropriate Implementation of the Contract on the Use of Neighboring Rights and Illegal Use of a Work Without the Contract

A person who failed to implement or who inappropriately implemented the contract on use of neighboring rights or used the work illegally without the contract, shall bear the responsibility in accordance with general rules on responsibilities for failure to implement or inappropriate implementation of the contract, or accordingly to responsibility for the damage caused.

 

Chapter 56. Right to Industrial Property (Right to Invention, Utility Model, Industrial Design)

 

Article 1088. Legal Protection of Invention, Utility Model and Industrial Design

(1) The right to an invention and industrial design is protected under condition that a preliminary patent, patent and certificate for utility model is granted

(2) Requirements claimed to the invention, utility model, industrial design, under which the right to get preliminary patent, patent, certificate for utility model (hereinafter referred to as protected document), the procedure of their issuance by the patent agency shall be established by the law.

 

Article 1089. Right to Use an Invention, Utility Model, Industrial Design

(1) A patent owner shall have the exclusive right to use an invention, utility model, industrial design protected by a protected document, at his discretion; including the right to produce the good with application of protected decisions, apply technological processes protected by the patent in his own production, sell or offer for sale goods that contain protected decisions and import relevant goods.

Persons, other than the patent owner, shall not be entitled to use the invention, utility model, industrial design without his permission, except for the cases when such a use is not considered violation of the rights of the patent owner according to the present Code and other laws.

(2) Unauthorized manufacture, application, import, offer for sale, sale and any other introduction into the economic turnover or storage for that purpose of the good that contain patented invention, utility model or industrial design, as well as application of the method protected by a preliminary patent, patent for an invention or introduction to the economic turnover or storage for this purpose of the goods manufactured directly by the method protected by a preliminary patent, patent for an invention, device in the functioning or exploitation of which the method, pursuant to its purpose, is automatically realized shall be recognized as the violation of the exclusive right of the patent owner.

The good is considered to be manufacture by a patented method unless proved otherwise.

 

Article 1090. Disposal of the Right to a Patent

The right to obtain a patent, the rights coming from registration of the application, the right to own the patent and rights coming from the patent may be transferred entirely or partially to the other person.

 

Article 1091. The Right of Authorship

(1) The author of invention, utility model or industrial design shall have the right to authorship and the right to give a special name to an invention, utility model or industrial design.

The right of authorship and other personal rights to an invention, utility model or industrial design shall arise from the moment of appearance of the rights based on the patent.

(2) The author of the invention, utility model or industrial design may have special rights, privileges and advantages of social nature according to the law.

(3) A person indicated in the application as the author shall be deemed the author unless otherwise is proved. Only the facts and the circumstances existing before the right’s appearance may be used as proofs.

 

Article 1092. Co-Authors of an Invention, Utility Model or Industrial Design

Relations of co-authors of an invention, utility model or industrial design shall be established by the agreement between them.

Uncreative assistance to creation of an invention, utility model or industrial design (technical, organizational or mathematics assistance, assistance in registration of rights, etc.) does not entail co-authorship.

 

Article 1093. Work Inventions, Utility Models and Industrial Designs

(1) The right to obtain protected document for an invention, utility model, industrial design created by an employee during execution of his service duties or a concrete task of the employer (work invention) shall belong to the employer provided that it is stipulated by the contract between them.

(2) The amount, conditions and procedure of payment of remuneration to the author for work invention, utility model or industrial design shall be established by the agreement between him and the employer. In case of failure to reach the agreement, the decision shall be made by court. Where it is impossible to measure contribution of the author and the employer to the creation of work invention, utility model or industrial design, the author shall have the right to the half of profit gained or to be gained by the employer.

 

Article 1094. Form of the Contract on Transfer of Right to a Protected Document

The contract on transfer of the right to protected document (concession of protected document) should be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements of registration entails illegality of the contract.

 

Article 1095. Form of Permission (License) to Use an Invention, Utility Model, Industrial Design

The licensing agreement and sub-licensing contract shall be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements on registration entails illegality of the contract.

 

Article 1096. Responsibility for Violation of a Protected Document

On the basis of the request of the patent owner, violation of the protected document must be stopped, and the violator must compensate the patent owner all his losses. Instead of the losses the patent owner has the right to charge from the violator the income gained by him from the violation.

 

Chapter 57. Rights to New Varieties of Plants  and New Animal Breeds

 

Article 1097. Protection of Right to New Varieties of Plants and New Animal Breeds

(1) Rights to the new varieties of plants and new animal breeds (breeding achievements) shall be protected provided that the patent is granted.

(2) Requirements under which the right to obtain a patent arises, the procedure of granting the patent for breeding achievements shall be established by the law.

(3) The rules of Articles 1090-1096 of this Code shall accordingly apply to the relations connected with the rights to breeding achievements and protection of these rights, unless otherwise is stipulated by the rules of the present chapter and the law.

 

Article 1098. Rights of the Author of a Breeding Achievement to Remuneration

The author of a breeding achievement who is not a patent owner shall have the right to receive the remuneration from the patent owner for the use of the breeding achievement within the term of patent validity.

The amount and conditions of payment of remuneration to the author of breeding achievement shall be established in the contract concluded between him and the patent owner.

 

Article 1099. Rights of the Patent Owner

The patent owner of a breeding achievement shall have the exclusive right to use this achievement within the limits established by the law.

 

Article 1100. Obligations of the Patent Owner

The patent holder of a breeding achievement shall be obliged to support appropriate variety of plant or animal breed within the validity term of the patent in a way to preserve the features indicated in the description of the variety of plant or breed of animal compiled at their registration.

 

Chapter 58. Protection of Undisclosed Information from Illegal Use

 

Article 1101.  Right to Protection of Undisclosed Information

A person who legally possesses technical, organizational or commercial information including production secrets (know-how) unknown to the third parties (undisclosed information) shall have the right for protection of this information from illegal exploitation unless the conditions established by Article 34 of the present Code are observed.

The right to protection of undisclosed information from illegal use arises irrespective of any formality carried out in respect of this information (its registration, receiving of certificate, etc.).

Rules on protection of undisclosed information shall not be applied in relation to the information which, in accordance with the law, cannot make up official or commercial secret (information on legal entities, rights to property and transactions with it which are subject to state registration, information subject to presentation as a state statistics reporting and others).

The right to protection of undisclosed information is valid until the conditions stipulated by Article 34 of this Code are valid.

 

Article 1102. Responsibility for Illegal Use of Undisclosed Information

(1) A person who has obtained or distributed undisclosed information or used it without legal grounds must recover losses caused in the result of illegal use to the person who legally possess the information.

Where a person illegally using undisclosed information received it from the person who has no right to distribute it, of which the acquirer of the information did not know and did not have to know (fair acquirer), the legal holder of undisclosed information shall have the right to demand him to compensate the losses caused by the use of undisclosed information after the fair acquirer became aware that the use is illegal.

(2) A person lawfully possessing undisclosed information shall be entitled to require form the person who illegally uses it, to stop this use immediately. However, the court may allow its further use under the conditions of payable exclusive license taking into consideration the means spent for its use by fair acquirer of undisclosed information.

(3) A person who independently and lawfully got the data which makes up the content of undisclosed information shall have the right to use this data irrespective of the rights of the holder of appropriate undisclosed information and does not report to him for such a use.

 

Article 1103. Transfer of the Right to Protection of  Undisclosed Information from Illegal Use

The person possessing undisclosed information may transfer all or a part of the data, which makes up the content of this information, to another person on the basis of licensing agreement.

A licensee is obliged to undertake proper measures to protect confidentiality of the information received on the basis of the contract, and has the same rights to its protection from illegal use by third persons as a licenser has. Given that the agreement does not stipulate otherwise, the liability to preserve confidentiality of the information shall be with the licensee even after termination of the licensing agreement, provided that the relevant data continue to be undisclosed information.

 

Chapter 59. Means of Individualization of Participants of the Civil Turnover, Goods, Works and Services

 

Paragraph 1. Trade Name

 

Article 1104.  Right to a Trade Name

(1) A legal entity whose trade name is registered in the established order shall have the exclusive right to use the trade name on goods, packaging, advertisements, sign boards, prospectus, bill boards, publications, official stationery and other documentation related to its activity, as well as in the course of demonstration of goods at fairs and exhibitions held in the territory of the Kyrgyz Republic.

(2) The order of registration of a trade name of a legal entity shall be determined by the normative legal acts.

 

Article 1105. Use of the Trade Name of a Legal Entity in a Trademark

The trade name of a legal entity may be used in his trademark.

 

Article 1106. Effectiveness of the Right to a Trade Name

(1) The exclusive right to a trade name registered in the Kyrgyz Republic as the designation of a legal entity shall be effective in the territory of the Kyrgyz Republic.

(2) The exclusive right to a trade name registered or commonly recognized in a foreign country shall be effective within the territory of the Kyrgyz Republic in cases provided by the law.

(3) The effectiveness of the right to a trade name shall be terminated with the liquidation of a legal entity or with a change of it trade name as well as in the other cases provided by the law.

 

Article 1107. Alienation of the Right to a Trade Name

Alienation or transfer of the right to the trade name of a legal entity shall be allowed only in cases of reorganization of the legal entity or the alienation of an enterprise as a whole.

The holder of the right to a trade name may authorize other person to use his trade name (grant a license). However, the licensing agreement must spell out measures excluding delusion of a consumer.

 

Paragraph 2. Trademark (service mark)

 

Article 1108. Legal Protection of a Trademark

(1) Legal protection of a trademark (service mark) shall be granted on the basis of its registration.

(2) The right to the trademark shall be certified by a certificate.

 

Article 1109. Right to Use the Trademark

(1) The owner of the right to the trademark shall have the exclusive right to use and dispose the mark which belongs to him.

(2) Any introduction of a trademark into turnover in the order established by the law shall be considered the use of a trademark.

 

Article 1110. Consequences of Non-Exploitation of a Trademark

(1) When a trademark is not used without valid reason continuously for 3 years from the date of its registration, it may be canceled at the request of any interested person.

(2) The grant of a license to use the trademark shall be deemed its use.

 

Article 1111. Transfer of the Right to the Trademark

(1) The right to the trademark in relation of all types of goods, works and services or their parts, indicated in the certificate, may be transferred by the right holder to another person under the agreement.

Transfer of the right to the trademark shall not be allowed if it can be the reason for mislead in relation to goods or their producer.

Transfer of the right to the trademark, including its transfer on the basis of the contract or in the procedure of right-succession should be registered in the patent agency.

 

Article 1112. Form of the Agreement on Transfer of the Right to a Trademark

The agreement on transfer of the right to the trademark or on granting a license should be concluded in written form and registered in the patent agency.

Failure to do it in written form and to comply with the requirement of the registration entails invalidity of the agreement.

 

Article 1113. Responsibility for Violation of the Right to a Trademark

The person unlawfully using the trademark shall be obliged to stop the violation and compensate the owner of the trademark his losses.

The person unlawfully using the trademark shall be obliged to destroy designations of the trademark produced, to remove the illegally used trademark or the sign which is identical to it to the extent of confusion from the goods and their packages.

If it is impossible to fulfill the requirements of the second paragraph of this Article the relevant good shall be subject to destruction.

 

Paragraph 3. Appellations of Origin of Goods

 

Article 1114. Legal Protection of Appellations of Origin of Goods

(1) Legal protection of appellations of origin of good shall be granted on the basis of its registration.

(2) Appellation of origin (indication of origin) of a good means the name of a country, settlement, locality or another geographical place used for designation of a product the special characteristic features of which are exclusively or mainly determined by natural conditions peculiar to this geographic place or by other factors or combination of natural conditions and these factors.

Appellation of origin of goods may be a historical name of a geographic place.

(3) A designation providing or including the name of a geographical object, but which is generally used in the Kyrgyz Republic as a designation of a certain type of goods not related to the place of its production, shall not be considered to be the appellation of origin of goods and is not subject to registration for the purpose of legal protection in accordance with the provisions of this paragraph. However, this does not deprive a person, whose rights are violated by unfair use of such an appellation, of the opportunity of their protection through other means stipulated by the law.

(4) Registration of the appellation of origin of goods shall be made by the patent agency.

(5) A certificate on the right to use the appellation of origin of goods shall be issued on the basis of the registration.

(6) The procedure and the conditions of registration, issuance of certificates, recognition of invalidity and termination of the validity of the registration and the certificates shall be established by the law.

 

Article 1115. The Right to Use the Appellation of the Origin of Goods

(1) A person holding the right to use the appellation of origin of goods shall be entitled to place this name on a product, package, advertisement, prospects, accounts and use it otherwise due to the introduction of this good into civil turnover.

(2) Appellation of origin of a product may be registered by several persons both jointly and in separation from each other for designation of the product which complies with the requirements of paragraphs 1 and 2, Article 1114 of this Code. The right to use the appellation of origin of good shall belong to each of these persons.

(3) Alienation and other deals on assignment of the right to use the appellation of origin of goods, as well as permission to use them on the basis of a license shall be prohibited.

 

Article 1116. Scope of the Legal Protection of Appellation of Origin of Goods

(1) Legal protection of appellation of origin of goods located on the territory of the Kyrgyz Republic shall be granted in the Kyrgyz Republic.

(2) Legal protection of the appellation of origin of goods located in another state shall be granted in the Kyrgyz Republic provided that this appellation is registered in the country of origin of goods, as well as in the patent agency of the Kyrgyz Republic and in accordance with the Code.

 

Article 1117. Responsibility for Unlawful Use of Appellation of Place of Origin of Goods

(1) A person holding the right to use the appellation of origin of goods, as well as the organizations on protection of consumer’s rights may demand from the person, who illegally uses this appellation, to stop the use, to remove the illegally used appellation or designation which are identical to the extent of confusion, from the goods, packages, forms and similar documents, to destroy the produced imprint of the appellation or sign which are identical to the extent of confusion, and if its impossible-to withdraw and destroy the goods and/or packages.

(2) A person holding the right to use the appellation of origin of goods shall be entitled to require the compensation of the losses from the violator of this right.

 

Civil Code

SECTION V. INTELLECTUAL PROPERTY

Chapter 53. General Provisions

Article 1037. Objects of Intellectual Property

Objects of intellectual property shall include:

1) results of intellectual activities:

– works of science, literature and art;

– performances, phonograms, programs of a broadcasting organization;

– programs of computer software and databases;

– integrated circuits topographies;

– inventions, utility models, industrial designs;

– breeding achievements;

– undisclosed information, including secrets of production (know-how);

2) means of individualization of participants of the civil turnover, goods, works and services;

– trade names;

– trademarks (service marks);

– appellations of places of origin of goods;

(3) other results of intellectual activity and means of individualization of participants of civil turnover, goods, works and services in the cases stipulated by this Code or other laws.

Article 1038..Legal Protection of Intellectual Property Objects

Legal protection of intellectual property objects arises due to the fact of their creation or as a result of rendering legal protection by an authorized state body in the cases and in the procedure stipulated by this Code and by other statutes.

Article 1039..Personal Economic and Non-Economic Rights to the Objects of Intellectual Property

(1) Authors of the results of intellectual activity shall have personal non-economic and economic rights in respect of these results.

Personal non-economic rights shall belong to the author irrespective of his economic rights and shall be retained by him in the case when his economic rights to the results of intellectual activity are transferred to another person.

(2) Owners of the right to the means of individualization of participants of civil turnover, goods, works or services (hereinafter referred to as “individualization means”) shall have economic rights in respect of these means.

(3) The right of authorship (the right to be recognized as the author of intellectual activity result) shall be a personal non-economic right and may belong only to the person who created the result of intellectual activity.

The right of authorship shall be inalienable and non-transferable.

(4) If the result is created by joint creative labor of two or more persons, they shall be considered co-authors.

Article 1040..Exclusive Rights to the Objects of Intellectual Property

1) The owner of economic rights to the result of intellectual activity or individualization means shall enjoy the exclusive right to make legal use of this object of intellectual property at his discretion in any form and way.

Use of intellectual property objects by other persons in respect of which the owner of the right enjoys the exclusive right, shall be permitted only upon the consent of the owner of the right.

(2) The owner of the exclusive right to the intellectual property object shall have the right to delegate the right to another person fully or partially, to authorize another person to use an intellectual property object and to enjoy the right to dispose it at his discretion provided it does not collide with the rules of this Code and other laws.

(3) Limitation of the exclusive rights, including the cases of doing it through rendering possibility to use intellectual property objects by other persons, recognition of these rights to be ineffective and their annulment (cancellation), shall be permitted in the cases, limits and procedure stipulated by this Code and other laws.

Limitation of the exclusive rights shall be permitted provided that such a limitation does not cause damage to the normal use of an intellectual property object and does not infringe the legitimate interests of the right owners.

Article 1041. Transfer of the Exclusive Rights to Another Person

(1) The economic rights belonging to an owner of the exclusive rights to an intellectual property object, if it is not stipulated otherwise by this Code or other laws, may be transferred by the owner of the right fully or partially to another person on the basis of a contract as well as transferred on inheritance or in the procedure of succession in the course of reorganization of a legal entity-right owner.

(2) The transfer of economic rights on a contractual basis or their transfer in the procedure of universal legal succession does not entail transfer or limitation of the right of authorship and other personal non-economic rights. The terms of the contract on transfer or limitation of such rights are void.

The exclusive rights that are being transferred according to the contract, shall be defined in it. The rights which are not specified in the contract as alienable shall be assumed to be not transferred because otherwise has not been proved.

The rules of licensing agreement shall be applied to a contract, which stipulates granting of the exclusive right within the term of its effectiveness, to another person for a limited period of time.

Article 1042. Licensing Agreement

(1) According to the licensing agreement the party which holds the exclusive right to the result of intellectual activity or means of individualization (licenser) shall grant to other party (licensee) permission for the use of a certain object of intellectual property.

The licensing agreement shall be assumed to be compensable.

(2) The licensing agreement may stipulate the following to be granted to a licensee:

– the right to use an object of intellectual property with the right of a licenser to use it and the right to grant the license to other persons (non exclusive license);

– the right to use an object of intellectual property with the right of a licenser to use it within the part not transferred to the licensee to other persons (exclusive license);

– other types of license allowed by the law.

Unless otherwise provided in the licensing agreement, the license shall be presumed to be (non exclusive).

(3) An agreement under which a licensee grants the right to use the object of intellectual property to another person is considered to be sub-license agreement. The licensee has the right to conclude a sub-license agreement in the cases stipulated by the licensing agreement.

Responsibility to the licenser for actions of a sub-licensee shall be carried by the licensee unless the licensing agreement stipulates otherwise.

Article 1043. The Agreement on Creation and Use the Results of Intellectual Activity

(1) According to the agreement on creation and use the results of intellectual activity the author may assume an obligation to create in the future a work, invention or other result of intellectual activity and grant to the client, who is not his employer, the exclusive rights to use this result.

Such an agreement must determine the nature of the result of intellectual activity which is subject to creation, as well as purposes or methods of its use.

(2) An agreement binding the author to grant to any person the exclusive rights to use any results of intellectual activity, which this author will create in the future shall be deemed void.

Conditions of the agreement on creation and use the results of intellectual property limiting the author to create the results of intellectual activity of certain type or in certain area in the future shall be deemed void.

Article 1044. The Exclusive Right and Property Right

The exclusive right to the result of intellectual property or means of individualization shall exist irrespective of property right to the material object in which such result or means of individualization are expressed.

Article 1045. .Effective Term of the Exclusive Right to the Objects of Intellectual Property

(1) The exclusive right to the objects of intellectual activity shall be effective for the term established by this Code or other laws.

(2) Personal non economic rights in respect of objects of intellectual property shall be effective without time-limits.

(3) In the cases stipulated by the law, validity of the exclusive right to the objects of intellectual property may be terminated in the result of failure to use it within certain period.

Article 1046. Methods of Protection of the Exclusive Rights to the Objects of Intellectual Property

(1) Protection of the exclusive rights to the objects of intellectual property is implemented by the methods stipulated in Article 11 of this Code. Protection of the exclusive rights may be implemented by the following methods:

– withdrawal of material objects with the help of which the exclusive rights are violated and material objects created in the result of such violation;

– obligatory publication on the violation committed, with the inclusion of the information as to who owns the violated right;

– other methods stipulated by the law.

(2) In the case of violation the agreement on creation and use the results of intellectual activity and means of individualization, general rules on the responsibility for violation of obligations shall be applied.

Chapter 54. Copyright

Article 1047. Works Protected by Copyright (Objects of Copyright)

(1) The copyright shall extend to the works of science, literature and art which are the result of creative activity, irrespective of the purpose, the merit and the manner of expression thereof.

(2) The work must be expressed in verbal, written or other objective form allowing the possibility of its perception.

The work in the written or otherwise expressed in a material carrier (manuscript, typewritten, musical score, recording with the help of technical means, including audio or video recording, fixation of the imprint in three dimensional or optical form, etc.) shall be deemed to have an objective form irrespective of its availability to the third persons.

Verbal and other work not expressed in a material carrier shall be deemed to have an objective form if it became available for perception by third persons (public recitation, public performance, etc.).

(3) The copyright shall extend both to promulgated and non-promulgated works.

(4) The copyright shall not extend to ideas, procedures, methods, concepts, principles, systems, proposed solutions, discoveries of objectively existing phenomena.

(5) No registration of work or observation of any other formalities shall be required for a copyright to emerge.

Article 1048Types of Objects of Copyright

The following shall be referred to the objects of copyright:

? literary works (literary-artistic, scientific, educational, publicistic and etc.);

? dramatic and scenario works;

? musical works with text and without it;

? music-dramatic works;

? choreographic works and pantomime;

? audiovisual works (cinema, television and video films, slide films and other cinema, television and video works), radio works;

? works of painting, sculpture, graphics, design and other works of fine arts;

? works of applied art and stage designs;

? works of architecture, urban planning, garden and park designs;

? photographic works and works obtained by way analogous to photography;

? geographical, geological and other maps, plans and sketches and other works related to geography, topography and other sciences;

? computer software programs of all types including applied programs and operational systems;

? other works complying with the requirements established in Article 1047 of this Code.

Article 1049. Parts of a Work, Derivative and Composite Works

(1) The objects of copyright shall be deemed parts of works, their designations and derivative works which meet the requirements established in Article 1047 of this Code.

The derivative works are works that present re-works of other works (translations, processing, annotations, abstracts, resumes, surveys, screen versions, arrangements and other similar works of science, literature and art);

Composite works shall include compilations (encyclopedias, anthologies) and other composite works that present the result of creative labor due to their set and arrangement.

(2) Derivative and composite works shall be protected by copyright irrespective of whether or not the works, on which they are based on or which they include, are the objects of copyright.

Article 1050. Works and Similar Results of Activity Which are not Objects of Copyright

The following shall not be deemed to be objects of copyright:

? official documents (laws, resolutions, decisions, etc.), as well as official translations thereof;

? official symbols and signs (flags, emblems, armorial bearings, monetary signs, etc.);

? works of folklore;

? information on daily news or information on current events which are of the common press nature;

? results gained with the help of technical means for production of a work of a certain type, but without creative activity of a man directly intended to create an individual work.

Article 1051. Rights to the Drafts of Official Documents, Symbols and Signs

(1) The right of authorship to a draft of official document, symbol or mark shall belong to an individual who developed the draft (the developer).

Developers of the drafts of official documents, symbols or marks shall have the right to publish such drafts if this is not prohibited by the body on whose order the draft was developed. Developers have the right to specify their names when publishing the draft.

(2) A draft may be used by a competent body to prepare an official document without developer’s consent if the draft was published by him and sent to a relevant body.

In the course of preparation the official documents, symbols and marks on the basis of a draft, amendments and addenda may be introduced into it at the discretion of the body who prepares the official document, symbol or mark.

After the draft is approved by a competent body, it may be used without indication the name of developer.

Article 1052. The Author of a Work Presumption of Authorship

(1) A citizen by whose creative labor the work is produced, shall be recognized as an author of the work.

A person, whose name is specified as an author’s name at the first publication of a work, shall be considered its author unless otherwise is proved.

(2) Where a published work is anonymous or pseudonymous (except for the cases when the author’s pseudonym leaves no doubt in his identity) the publisher, whose name is indicated on the work, unless proved otherwise, shall be considered the author’s representative and have the right to defend and enforce the author’s rights. This provision shall remain in force until the author of such a work discloses his identity and claims his authorship.

Article 1053. Co-Authorship

(1) The copyright to the work, created by joint creative labor of two or more citizens, shall belong to co-authors mutually, irrespective of whether such a work constitutes an indivisible whole or consists of the parts each of which also has an independent standing.

Part of a work shall be recognized as having its independent standing if it can be used independently from other parts of this work.

Each of the co-authors shall have the right to use part of the work created by him and having its independent standing at his discretion, unless otherwise is stipulated by the agreement between them.

(2) As a rule the relations between the co-authors are determined on the basis of the agreement. If there is not such an agreement, the copyright to the work shall be exercised by all the authors jointly and the remuneration shall be distributed among them equally.

If the work of co-authors forms an indivisible whole, none of the co-authors shall be entitled to prohibit the exploitation of the work without valid reasons.

Article 1054. The Authors of Derivative and Composite Works

(1) The authors of derivative and composite works shall be considered the persons who processed other works, translators, compilers of collections and other composite works that present the result of creative labor due to the set or arrangement.

The author of a derivative and composite work shall enjoy the copyright to such a work provided that he observes with the rights of the author of the work which was subject to processing, translation or incorporation into a composite work.

(2) The copyright of creators of derivative and composite works shall not prevent other persons from creating their own derivative works on the basis of the works used previously.

Article 1055. Rights of Persons Organizing Creation of Works

(1) Persons who organize creation of works (encyclopedia publishers, film makers, producers, etc.) shall not be recognized as authors of the appropriate works.

However, in the cases stipulated by this Code or other laws, such persons shall acquire the exclusive rights to use these works.

(2) Publishers of encyclopedia, encyclopedic dictionaries, periodical and continuos collections of scientific works, newspapers, magazines and other periodicals shall enjoy the exclusive right to use these publications. The publisher has the right to specify his name or require such specification at any use of such publication.

(3) The authors of the works included into such publications shall retain the exclusive right to use their own works irrespective of the publication in whole, unless otherwise is stipulated by the agreement to create the work.

(4) Conclusion of the agreement to create an audio-visual work, including a movie, does not entail transfer of the exclusive right from the author of the work to the producer to reproduction, distribution, public performance, cable communication for public information, broadcasting or any other public use of the product, subtitling or dubbing of the text of the movie, unless otherwise is stipulated by the agreement. The rights mentioned shall be in force for the term of validity of a copyright to an audio-visual work.

Producer of an audio-visual work shall have the right to specify its (his) name or demand such a specification at any use of this work.

At a public display (show) of an audio-visual work the author of a musical work (either with text or without it) shall retain the right to remuneration for public performance of his musical work, unless the agreement provides otherwise.

Destruction of the final version of the movie (original, negative) without consent of the author and other holders of economic rights to a movie shall be prohibited.

Article 1056. The Mark of Protection Copyright

(1) In order to inform about his rights, the owner of the exclusive copyright may use a copyright protection mark on each copy of the work. The mark consists of three elements:

– the Latin letter “C” in a circle;

– the name of the holder of the exclusive copyright;

– the year of the first publication of the work.

(2) A person specified on the copyright protection mark shall be deemed to be the right holder, unless proved otherwise.

Article 1057. Personal Non-Economic Rights of the Author

(1) The author of a work shall have the following personal non-economic rights:

? right of authorship;

? right to the name;

? right to promulgation including the right to revoke;

? right to work inviolability;

(2) The agreement of the author with somebody and application of the author on revocation of personal non-economic rights shall be void.

Article 1058. Right of Authorship

The right of authorship to created work that belongs to an author (co-authors) shall exclude acknowledgment of authorship of other persons to the same work.

Article 1059. Right to the Name

The author shall have the exclusive right to use or authorize the use of the work under his name, pseudonym or anonymously (right to the name).

Article 1060. Right to Inviolability of the Work

(1) The author shall have the exclusive right to introduce amendments and addenda to his work and to protect his work from the introduction of amendments and addenda by somebody without consent of the author (right to inviolability of the work).

In publishing, public performance or other use of a work any amendments may be introduced to the work itself as well as its name and the author’s name only with the consent of the author.

It shall be prohibited to include illustrations, prefaces, epilogues, comments and any other explanations in the work without the consent of the author.

(2) After the death of an author the inviolability of the work shall be provided by the person indicated in the will and in the absence of such indications-by the heirs of the author as well as the persons responsible for protection of copyright in accordance with the Law.

Article 1061. Right to Promulgation of a Work

(1) The author shall have the right to open an access to the work for an indefinite group of people (right to publication).

(2) The work shall be deemed promulgated when the access to the work for an indefinite group of people is opened for the first time by the author or under his consent by means of publication, public performance, public demonstration of the work or its issuance otherwise.

The author shall have the right to refuse from the previously made decision on promulgation of the work (right to revoke) under condition that the losses, including lost profits caused to the persons entitled to use the work, are covered. If the work was promulgated the author must publicly inform about its revocation. He shall have the right to withdraw from circulation the earlier produced copies of the work at his own expense. These provisions shall also apply to the work products unless the agreement with the author stipulates otherwise.

Article 1062. Author’s Right to Use a Work

(1) An author shall have the exclusive rights to use the work in any form and way.

(2) The use of a work shall be considered its reproduction and distribution, as well as its sale in other ways, that, in particular shall include:

? public demonstration (exhibition, display) of the work;

? renting of a copy which is the material carrier of the work;

? public performance of the work;

? transmission of the work to air (broadcast by radio or TV) including transmission via cable or satellite;

? technical record of the work;

? reproduction of technical record of the work including by radio or television;

? translation or re-doing of the work for its further use;

? practical implementation of urban planning, architectural and design project.

Reproduction shall be considered repeated creation of an objective form of the work at least the one it had in the original form (publication of the work, copying of audio or video records etc.).

The distribution of the work shall include the sale, exchange, rent and other operations with copies of the work.

(3) When the copies of the work are alienated legally, their further distribution shall be allowed without consent of the author and without payment of author’s remuneration, except for the cases stipulated by the Law.

(4) The work shall be deemed used irrespective of whether it is used in order to get income (profit) or it is not the purpose of the use.

(5) The practical application of principles composing the content of a work (invention, technical, economic, organizational and other similar solutions) shall not be deemed as the use of a work in terms of copyright.

Article 1063. Disposal of the Right to Use a Work

(1) The author or other owner of the right may transfer all the rights to use the work to another person in accordance with the agreement, including the one concluded at public auctions (alienation of the right to use).

(2) The right to use the work shall be transferred in accordance with the procedure of universal legal succession.

(3) The right-holder may grant the permission (license) to another person to use the work within certain limits. The permission is required to use the work both in the original and revised version, in particular-in the form of translation, arrangement, etc.

(4) Every method of use of the work requires special permission of the right holder.

Article 1064. Limits of Copyrights

The exclusive rights of the author and other persons to use the work shall be allowed only in the cases stipulated by Articles 1065-1068 of this Code or other Laws.

The indicated restrictions shall be applied under condition that it neither damages the normal use of the work nor unreasonably infringes the legal interests of the author.

Article 1065. Reproduction of Alien Work for Personal Purposes

(1) The alien work which was publicly released shall be allowed to use for personal purposes without consent of the author and without payment of author’s remuneration provided that the normal use of the work is not damaged and the legal interests of the author are not infringed.

(2) The rules of the first paragraph of this Article shall not apply in relation to:

? the use of architectural works in the form of buildings and similar structures;

? the use of data bases or their significant parts;

? the use of computer software, except for the cases stipulated by the Law;

? reproduction of books (as a whole) and musical scores;

(3) In the first paragraph of this Article the Law shall have an exception to stipulate that if an audiovisual work or work fixed on a phonogram is used for personal purposes, the author, performer and producer of the record shall be entitled to the commensurate remuneration.

The remuneration for reproduction shall be paid in the form of deductions (interests) by the producers and importers of equipment (audio electronics, video-tape recorders, etc.) and material carriers (audio and (or) video tapes, cassettes, laser disks, compact disks, etc.) which are used for such reproduction.

Article 1066. Free Public Performance of Works

Public performance of the legally published musical compositions during the official religious and funeral ceremonies shall be allowed without consent of the author and without payment of author’s remuneration in the volume justified by the nature of such ceremonies.

Article 1067. Free Reproduction of Works for Judicial Purposes

The reproduction of works for the purposes of judicial and administrative work in the volume justified by the purpose of use shall be allowed without consent of the author and without the payment of author’s remuneration.

Article 1068. Right to the Work Product

(1) Personal non-economic rights to the work created in the course of execution of service assignment (work product) shall belong to the author of the work.

(2) The right to use the work product in the way set by the purpose of the assignment and limits preconditioned by it, shall belong to the person on whose assignment the work has been created and with whom the author has labor relations (employer) unless the agreement between him and the author stipulates otherwise. The employer shall be entitled to transfer this right of use to another person.

The agreement of the employer with the author may stipulate payment of remuneration to the author for the use of the work product and contain other conditions of its use.

(3) After ten years from the date of submission of the work and with the consent of the employer-earlier, the author shall obtain the full right to use the work and receive author’s remuneration, irrespective of the agreement concluded with the employer.

(4) The author’s right to use a work product in a way not conditioned by the purpose of the assignment, shall not be limited.

Article 1069. Validity of Copyright in the Territory of the Kyrgyz Republic

(1) The copyright to the work promulgated in the territory of the Kyrgyz Republic or non-promulgated but the original copy of which in any form is located in the territory of the Republic, shall be valid in the territory of the Kyrgyz Republic. In this case the copyright shall belong to the author and his heirs as well as other legal successors of the author irrespective of their citizenship.

(2) The copyright shall also belong to the citizens of the Kyrgyz Republic whose works are promulgated or exist in some objective form in the territory of a foreign state, as well as to their heirs and other legal successors.

(3) When the author is protected legally in accordance with the international agreements the fact of promulgation in the territory of a foreign state shall be determined in accordance with the provisions of the appropriate international agreement.

In order to protect the work in the territory of the Kyrgyz Republic the person who is recognized as the author of the work shall be determined in accordance with the Laws of the state where the work commenced being protected for the first time.

Article 1070. Commencement of Copyright Effectiveness

(1) The copyright to the work shall be in force from the date of shaping it into an objective form simple for perception by the third parties irrespective of promulgation. The copyright to the oral work shall be in force from the moment of its communication to the third persons.

(2) Where the work does not come under Article 1069 of this Code the copyright to such a work shall be protected from the moment of promulgation of the work provided that it carried out in the Kyrgyz Republic.

Article 1071. Term of Copyright Validity

(1) The copyright shall be valid during the whole life of the author and fifty years after his death, beginning from the first of January of the year following the year of the author’s death.

(2) The copyright to the work created in co-authorship shall be valid during the whole life of the co-authors and fifty years after the death of the last of co-author who outlived other co-authors.

(3) The copyright to the work issued for the first time under pseudonym or anonymously shall be valid during fifty years, beginning from January 1 of the year following the year when the work was issued.

Where the pseudonym or an anonymous author is disclosed, the terms indicated in the first paragraph of this Article shall be applied.

(4) During the period indicated in the first paragraph of this Article the copyright shall belong to the author’s heirs and be inherited. During the same terms the copyright shall belong to the legal successors who obtained this right on the basis of the contract with the author, his heirs and future legal successors.

(5) The copyright to the work issued for the first time during fifty years after the author’s death shall be valid during fifty years after its issue, beginning from January 1 of the year following the year when the work was issued.

(6) The authorship, name of the author and inviolability of the work shall be protected without fixed limits.

Article 1072 Transfer of a Work to the Public Domain

(1) Upon expiration of copyright validity term for the work, it shall become public domain.

The works which have never been protected in the territory of the Kyrgyz Republic shall be deemed to be public domain.

(2) The works which belong to public domain may be used freely by any person without payment of the author’s remuneration. The right of authorship, right to the name and the right to inviolability of the work shall be observed.

Article 1073. Author’s Contract

(1) The author or his heirs may transfer the right to use his work to another person by the way of conclusion of the author’s contract. The author’s contract shall be for pay.

(2) The author’s contract may be concluded for a prepared work or for the work which will be created by the author under his obligation (order contract). The author’s contract shall also be the contract permitting the use of the work within certain limits, which is concluded by the author or his heirs (author’s licensing contract).

Article 1074. Conditions of the Author’s Contract

(1) The author’s contract must stipulate:

– methods of use of the work (specific rights transferred in accordance with this contract);

– term and territory for which the right is transferred;

– the amount of remuneration and (or) procedure for determination the amount of remuneration for every method of use of the work, procedure and terms of payment.

If the author’s contract does not stipulate conditions on the term for which the right to use the work is transferred, the contract may be canceled by the author in five years from the date of its conclusion provided that the user is informed about it in writing, six month before the cancellation of the contract.

If the author’s contract does not stipulate the conditions about the territory on which the right to use the work is valid, the validity of the right transferred in accordance with the contract shall be limited by the territory of the Kyrgyz Republic.

(2) The subject of the author’s contract can not include the rights to use the work which are unknown at the moment of conclusion the contract.

(3) The amount of remuneration for the use of the work shall be specified in the author’s contract under the agreement of the parties.

Where the author’s contract on publication or other reproduction of performance of the work sets the fixed amount of the remuneration, the contract shall stipulate the maximum number of copies of the work.

The waiver of the author and his heirs from the right to remuneration is void.

(4) The rights transferred under the author’s contract can be transferred by any party of the contract fully or partially to other persons only if it is directly stipulated by such a contract.

Article 1075. Form of the Author’s Contract

The author’s contract shall be concluded in the written form except the cases stipulated by the Law.

Article 1076. Responsibility Under the Author’s Contract

The party which did not fulfill or improperly fulfilled the liabilities under the author’s contract must cover the losses caused to the other party including lost profit.

Article 1077. Term of Validity of the Author’s Licensing Contract

(1) The author’s licensing contract shall be valid during the period stipulated by it, but not longer than the term of the copyright validity.

(2) Irrespective of weather the term of validity is included in the author’s licensing contract or not, the author of the work and his heirs shall be entitled to cancel the contract unilaterally in ten years after the date of the conclusion of the contract, informing his contract agent about it in writing, six months prior to the cancellation of the contract. The author and his heirs shall have this right every ten years.

(3) The contract can stipulate the terms of use of the work, the violation of which results in the right of the legal successor to cancel the contract.

Article 1078. Liability for Illegal Use of a Work Without Contract

In the event the work is used without a contract concluded with the owner of the right, the violator is obliged to indemnify the losses caused to the right owner, including lost profit. The right owner shall be entitled to disgorge from the violator the revenues obtained in the result of the violation instead of the losses.

The use of the work in a way which is not stipulated by the author’s contract or after expiration of validity of such a contract shall be considered the use of the work without a contract.

Article 1079. Legal Regulation of Authors’ Relations

The authors’ relations shall be regulated by this Code and other legislation.

Chapter 55. Neighboring Rights

Article 1080. Object of Neighboring Rights

Neighboring rights shall extend to staging, performance, phonograms, programs of broadcasting and cable organizations.

Article 1081. Subjects of Neighboring Rights

(1) The right to performance shall belong to actors-performers, director-stagers, conductors. The right to use such a performance may be transferred to heirs and other legal successors.

(2) The right to record a performance shall belong to the person who created such a record or to his/her legal successors.

(3) The right to transmission shall belong to the broadcasting or cable organization that created a program or to its legal successors.

Article 1082. Mark of Protection of Neighboring Rights

The producer of a phonogram and the performer may, in order to inform about his rights, use the mark of protection neighboring rights which is placed on each copy of a phonogram and (or) on each sleeve and consists of three elements:

? a circled Latin letter “P”;

? name of the owner of the exclusive neighboring rights;

? year of the first publication of the recording.

Article 1083. Rights of a Performer

(1) The performer has the right for:

? indication of his/her name during performance, on copies of the record of performance or staging, in the course of broadcast or reproduction of the performance or staging;

? protection of the performance or staging against distortion;

? provision or permission to use the performance or staging;

(2) The right to use the performance or staging includes the right to allow:

? broadcast or cable transmission of the performance or staging;

? record of the performance or staging with the help of technical devices;

? broadcast and public reproduction of the produced record of a performance or staging;

? copying and distribution of the copies of a record of a performance and staging.

(3) Performers shall exercise their rights with the observation of the rights of authors of the works performed.

(4) Restrictions of the right to use or stage the performance shall be established by the law.

(5) The provisions of Article 1068 shall accordingly apply to the right to performance made in the course of execution of the work related assignment (work performance or staging).

Article 1084. Rights of a Producer of a Phonogram

(1) Producer of a phonogram and his legal successor shall have the exclusive right to this phonogram.

Exploitation of such a phonogram by other persons is allowed only upon the permission of the producer of a phonogram or his legal successor.

(2) Producer of a phonogram or his legal successor shall have the right to perform or to authorize the following:

? public reproduction of the phonogram;

? adaptation or any other transformation of the phonogram;

? distribution of copies of the phonogram (sale, rental etc.), including their transfer abroad;

? import copies of the phonogram.

(3) If the property right to the copy of the record of performance belongs not to its creator, the exclusive right to use the record, including its commercial rental belongs to the person who created the record.

(4) Restrictions of the rights of the producer of performance shall be established by the law.

(5) Holders of the right to the phonogram shall exercise their rights taking into account the rights of authors of the work and rights of the performers.

Article 1085. Rights of a Cable Broadcasting Organization

(1) Broadcasting company shall have the exclusive right to exploit its program in any form and give permission to third persons to use such a program.

Exploitation of the program by the third persons shall be done on the basis of a contract. The right-holder shall be entitled to remuneration for each type of use.

(2) Restrictions of the rights of a broadcasting company shall be established by the law.

(3) The broadcasting company shall implement its rights taking into account the rights of authors of works and rights of performers, and in certain cases – holders of the rights to the record of performance and other broadcasting companies.

Article 1086. Rights of a Cable Broadcasting Organization

Rights of the cable broadcasting organization shall be established as applicable to the rights of a broadcasting organization established by this Code and the law.

Article 1087. Responsibility for Non-Implementation or Inappropriate Implementation of the Contract on the Use of Neighboring Rights and Illegal Use of a Work Without the Contract

A person who failed to implement or who inappropriately implemented the contract on use of neighboring rights or used the work illegally without the contract, shall bear the responsibility in accordance with general rules on responsibilities for failure to implement or inappropriate implementation of the contract, or accordingly to responsibility for the damage caused.

Chapter 56. Right to Industrial Property (Right to Invention, Utility Model, Industrial Design)

Article 1088. Legal Protection of Invention, Utility Model and Industrial Design

(1) The right to an invention and industrial design is protected under condition that a preliminary patent, patent and certificate for utility model is granted

(2) Requirements claimed to the invention, utility model, industrial design, under which the right to get preliminary patent, patent, certificate for utility model (hereinafter referred to as protected document), the procedure of their issuance by the patent agency shall be established by the law.

Article 1089. Right to Use an Invention, Utility Model, Industrial Design

(1) A patent owner shall have the exclusive right to use an invention, utility model, industrial design protected by a protected document, at his discretion; including the right to produce the good with application of protected decisions, apply technological processes protected by the patent in his own production, sell or offer for sale goods that contain protected decisions and import relevant goods.

Persons, other than the patent owner, shall not be entitled to use the invention, utility model, industrial design without his permission, except for the cases when such a use is not considered violation of the rights of the patent owner according to the present Code and other laws.

(2) Unauthorized manufacture, application, import, offer for sale, sale and any other introduction into the economic turnover or storage for that purpose of the good that contain patented invention, utility model or industrial design, as well as application of the method protected by a preliminary patent, patent for an invention or introduction to the economic turnover or storage for this purpose of the goods manufactured directly by the method protected by a preliminary patent, patent for an invention, device in the functioning or exploitation of which the method, pursuant to its purpose, is automatically realized shall be recognized as the violation of the exclusive right of the patent owner.

The good is considered to be manufacture by a patented method unless proved otherwise.

Article 1090. Disposal of the Right to a Patent

The right to obtain a patent, the rights coming from registration of the application, the right to own the patent and rights coming from the patent may be transferred entirely or partially to the other person.

Article 1091. The Right of Authorship

(1) The author of invention, utility model or industrial design shall have the right to authorship and the right to give a special name to an invention, utility model or industrial design.

The right of authorship and other personal rights to an invention, utility model or industrial design shall arise from the moment of appearance of the rights based on the patent.

(2) The author of the invention, utility model or industrial design may have special rights, privileges and advantages of social nature according to the law.

(3) A person indicated in the application as the author shall be deemed the author unless otherwise is proved. Only the facts and the circumstances existing before the right’s appearance may be used as proofs.

Article 1092. Co-Authors of an Invention, Utility Model or Industrial Design

Relations of co-authors of an invention, utility model or industrial design shall be established by the agreement between them.

Uncreative assistance to creation of an invention, utility model or industrial design (technical, organizational or mathematics assistance, assistance in registration of rights, etc.) does not entail co-authorship.

Article 1093. Work Inventions, Utility Models and Industrial Designs

(1) The right to obtain protected document for an invention, utility model, industrial design created by an employee during execution of his service duties or a concrete task of the employer (work invention) shall belong to the employer provided that it is stipulated by the contract between them.

(2) The amount, conditions and procedure of payment of remuneration to the author for work invention, utility model or industrial design shall be established by the agreement between him and the employer. In case of failure to reach the agreement, the decision shall be made by court. Where it is impossible to measure contribution of the author and the employer to the creation of work invention, utility model or industrial design, the author shall have the right to the half of profit gained or to be gained by the employer.

Article 1094. Form of the Contract on Transfer of Right to a Protected Document

The contract on transfer of the right to protected document (concession of protected document) should be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements of registration entails illegality of the contract.

Article 1095. Form of Permission (License) to Use an Invention, Utility Model, Industrial Design

The licensing agreement and sub-licensing contract shall be concluded in written form and be registered in the patent agency. Failure to comply with the written form or requirements on registration entails illegality of the contract.

Article 1096. Responsibility for Violation of a Protected Document

On the basis of the request of the patent owner, violation of the protected document must be stopped, and the violator must compensate the patent owner all his losses. Instead of the losses the patent owner has the right to charge from the violator the income gained by him from the violation.

Chapter 57. Rights to New Varieties of Plants and New Animal Breeds

Article 1097. Protection of Right to New Varieties of Plants and New Animal Breeds

(1) Rights to the new varieties of plants and new animal breeds (breeding achievements) shall be protected provided that the patent is granted.

(2) Requirements under which the right to obtain a patent arises, the procedure of granting the patent for breeding achievements shall be established by the law.

(3) The rules of Articles 1090-1096 of this Code shall accordingly apply to the relations connected with the rights to breeding achievements and protection of these rights, unless otherwise is stipulated by the rules of the present chapter and the law.

Article 1098. Rights of the Author of a Breeding Achievement to Remuneration

The author of a breeding achievement who is not a patent owner shall have the right to receive the remuneration from the patent owner for the use of the breeding achievement within the term of patent validity.

The amount and conditions of payment of remuneration to the author of breeding achievement shall be established in the contract concluded between him and the patent owner.

Article 1099. Rights of the Patent Owner

The patent owner of a breeding achievement shall have the exclusive right to use this achievement within the limits established by the law.

Article 1100. Obligations of the Patent Owner

1100. The patent holder of a breeding achievement shall be obliged to support appropriate variety of plant or animal breed within the validity term of the patent in a way to preserve the features indicated in the description of the variety of plant or breed of animal compiled at their registration.

Chapter 58. Protection of Undisclosed Information from Illegal Use

Article 1101. Right to Protection of Undisclosed Information

A person who legally possesses technical, organizational or commercial information including production secrets (know-how) unknown to the third parties (undisclosed information) shall have the right for protection of this information from illegal exploitation unless the conditions established by Article 34 of the present Code are observed.

The right to protection of undisclosed information from illegal use arises irrespective of any formality carried out in respect of this information (its registration, receiving of certificate, etc.).

Rules on protection of undisclosed information shall not be applied in relation to the information which, in accordance with the law, cannot make up official or commercial secret (information on legal entities, rights to property and transactions with it which are subject to state registration, information subject to presentation as a state statistics reporting and others).

The right to protection of undisclosed information is valid until the conditions stipulated by Article 34 of this Code are valid.

Article 1102. Responsibility for Illegal Use of Undisclosed Information

(1) A person who has obtained or distributed undisclosed information or used it without legal grounds must recover losses caused in the result of illegal use to the person who legally possess the information.

Where a person illegally using undisclosed information received it from the person who has no right to distribute it, of which the acquirer of the information did not know and did not have to know (fair acquirer), the legal holder of undisclosed information shall have the right to demand him to compensate the losses caused by the use of undisclosed information after the fair acquirer became aware that the use is illegal.

(2) A person lawfully possessing undisclosed information shall be entitled to require form the person who illegally uses it, to stop this use immediately. However, the court may allow its further use under the conditions of payable exclusive license taking into consideration the means spent for its use by fair acquirer of undisclosed information.

(3) A person who independently and lawfully got the data which makes up the content of undisclosed information shall have the right to use this data irrespective of the rights of the holder of appropriate undisclosed information and does not report to him for such a use.

Article 1103. Transfer of the Right to Protection of Undisclosed Information from Illegal Use

The person possessing undisclosed information may transfer all or a part of the data, which makes up the content of this information, to another person on the basis of licensing agreement.

A licensee is obliged to undertake proper measures to protect confidentiality of the information received on the basis of the contract, and has the same rights to its protection from illegal use by third persons as a licenser has. Given that the agreement does not stipulate otherwise, the liability to preserve confidentiality of the information shall be with the licensee even after termination of the licensing agreement, provided that the relevant data continue to be undisclosed information.

Chapter 59. Means of Individualization of Participants of the Civil Turnover, Goods, Works and Services

Paragraph 1. Trade Name

Article 1104. Right to a Trade Name

(1) A legal entity whose trade name is registered in the established order shall have the exclusive right to use the trade name on goods, packaging, advertisements, sign boards, prospectus, bill boards, publications, official stationery and other documentation related to its activity, as well as in the course of demonstration of goods at fairs and exhibitions held in the territory of the Kyrgyz Republic.

(2) The order of registration of a trade name of a legal entity shall be determined by the normative legal acts.

Article 1105. Use of the Trade Name of a Legal Entity in a Trademark

The trade name of a legal entity may be used in his trademark.

Article 1106. Effectiveness of the Right to a Trade Name

(1) The exclusive right to a trade name registered in the Kyrgyz Republic as the designation of a legal entity shall be effective in the territory of the Kyrgyz Republic.

(2) The exclusive right to a trade name registered or commonly recognized in a foreign country shall be effective within the territory of the Kyrgyz Republic in cases provided by the law.

(3) The effectiveness of the right to a trade name shall be terminated with the liquidation of a legal entity or with a change of it trade name as well as in the other cases provided by the law.

Article 1107. Alienation of the Right to a Trade Name

Alienation or transfer of the right to the trade name of a legal entity shall be allowed only in cases of reorganization of the legal entity or the alienation of an enterprise as a whole.

The holder of the right to a trade name may authorize other person to use his trade name (grant a license). However, the licensing agreement must spell out measures excluding delusion of a consumer.

Paragraph 2. Trademark (service mark)

Article 1108. Legal Protection of a Trademark

(1) Legal protection of a trademark (service mark) shall be granted on the basis of its registration.

(2) The right to the trademark shall be certified by a certificate.

Article 1109. Right to Use the Trademark

(1) The owner of the right to the trademark shall have the exclusive right to use and dispose the mark which belongs to him.

(2) Any introduction of a trademark into turnover in the order established by the law shall be considered the use of a trademark.

Article 1110. Consequences of Non-Exploitation of a Trademark

(1) When a trademark is not used without valid reason continuously for 3 years from the date of its registration, it may be canceled at the request of any interested person.

(2) The grant of a license to use the trademark shall be deemed its use.

Article 1111. Transfer of the Right to the Trademark

(1) The right to the trademark in relation of all types of goods, works and services or their parts, indicated in the certificate, may be transferred by the right holder to another person under the agreement.

Transfer of the right to the trademark shall not be allowed if it can be the reason for mislead in relation to goods or their producer.

Transfer of the right to the trademark, including its transfer on the basis of the contract or in the procedure of right-succession should be registered in the patent agency.

Article 1112. Form of the Agreement on Transfer of the Right to a Trademark

The agreement on transfer of the right to the trademark or on granting a license should be concluded in written form and registered in the patent agency.

Failure to do it in written form and to comply with the requirement of the registration entails invalidity of the agreement.

Article 1113. Responsibility for Violation of the Right to a Trademark

The person unlawfully using the trademark shall be obliged to stop the violation and compensate the owner of the trademark his losses.

The person unlawfully using the trademark shall be obliged to destroy designations of the trademark produced, to remove the illegally used trademark or the sign which is identical to it to the extent of confusion from the goods and their packages.

If it is impossible to fulfill the requirements of the second paragraph of this Article the relevant good shall be subject to destruction.

Paragraph 3. Appellations of Origin of Goods

Article 1114. Legal Protection of Appellations of Origin of Goods

(1) Legal protection of appellations of origin of good shall be granted on the basis of its registration.

(2) Appellation of origin (indication of origin) of a good means the name of a country, settlement, locality or another geographical place used for designation of a product the special characteristic features of which are exclusively or mainly determined by natural conditions peculiar to this geographic place or by other factors or combination of natural conditions and these factors.

Appellation of origin of goods may be a historical name of a geographic place.

(3) A designation providing or including the name of a geographical object, but which is generally used in the Kyrgyz Republic as a designation of a certain type of goods not related to the place of its production, shall not be considered to be the appellation of origin of goods and is not subject to registration for the purpose of legal protection in accordance with the provisions of this paragraph. However, this does not deprive a person, whose rights are violated by unfair use of such an appellation, of the opportunity of their protection through other means stipulated by the law.

(4) Registration of the appellation of origin of goods shall be made by the patent agency.

(5) A certificate on the right to use the appellation of origin of goods shall be issued on the basis of the registration.

(6) The procedure and the conditions of registration, issuance of certificates, recognition of invalidity and termination of the validity of the registration and the certificates shall be established by the law.

Article 1115. The Right to Use the Appellation of the Origin of Goods

(1) A person holding the right to use the appellation of origin of goods shall be entitled to place this name on a product, package, advertisement, prospects, accounts and use it otherwise due to the introduction of this good into civil turnover.

(2) Appellation of origin of a product may be registered by several persons both jointly and in separation from each other for designation of the product which complies with the requirements of paragraphs 1 and 2, Article 1114 of this Code. The right to use the appellation of origin of good shall belong to each of these persons.

(3) Alienation and other deals on assignment of the right to use the appellation of origin of goods, as well as permission to use them on the basis of a license shall be prohibited.

Article 1116. Scope of the Legal Protection of Appellation of Origin of Goods

(1) Legal protection of appellation of origin of goods located on the territory of the Kyrgyz Republic shall be granted in the Kyrgyz Republic.

(2) Legal protection of the appellation of origin of goods located in another state shall be granted in the Kyrgyz Republic provided that this appellation is registered in the country of origin of goods, as well as in the patent agency of the Kyrgyz Republic and in accordance with the Code.

Article 1117. Responsibility for Unlawful Use of Appellation of Place of Origin of Goods

(1) A person holding the right to use the appellation of origin of goods, as well as the organizations on protection of consumer’s rights may demand from the person, who illegally uses this appellation, to stop the use, to remove the illegally used appellation or designation which are identical to the extent of confusion, from the goods, packages, forms and similar documents, to destroy the produced imprint of the appellation or sign which are identical to the extent of confusion, and if its impossible-to withdraw and destroy the goods and/or packages.

(2) A person holding the right to use the appellation of origin of goods shall be entitled to require the compensation of the losses from the violator of this right.

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