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Economic and Social Council UNITED NATIONS E Distr. Economic and Social GENERAL Council TRADE/WP.5/AG.3/2001/4 3 August 2001 ORIGINAL: ENGLISH ECONOMIC COMMISSION FOR EUROPE COMMITTEE FOR TRADE, INDUSTRY AND ENTERPRISE DEVELOPMENT Working Party on International Legal and Commercial Practice Advisory Group on the Protection and Implementation of Intellectual Rights for Investment (Third session, 1 October 2001) Report of the Consultative Visit to Latvia 13-14 November 2000, Riga, Latvia Introduction 1. The following report presents the conclusions of the Consultative Visit to Latvia by the UNECE Advisory Group on the Protection and Implementation of Intellectual Property Rights for Investment. The objective of the Consultative Visit was to discuss with experts from the Latvian Government and local right holders the situation regarding intellectual property rights in Latvia and to develop jointly recommendations for the improvement of intellectual property protection thus facilitating the preparation of an action plan by the Latvian government. Participation 2. The consultative meeting with the Latvian Government was conducted by members of the Advisory Group (see the list of participants). The meeting was attended by Government representatives from the Ministries of Culture, Foreign Affairs, Interior, Justice, Economy and Welfare as well as by representatives from the Latvian Competition Board, European Integration Bureau, State Customs Administration, Contraband Combating Centre, Economic Police, Latvian Development Agency, National Cinematography Centre and the State Patent Office. Several representatives of the judiciary also attended from the Latvian Supreme Court, Riga and Vidzemes District Courts and the Riga Regional Court. The UNDP Resident Representative in Latvia was also present. The following right holders’ associations attended the meeting: Latvian Performers’ and Producers’ Association, Latvian Copyright Agency and Software Copyright Agency. 3. The list of participants is annexed to this report. GE.01- TRADE/WP.5/AG.3/2001/4 Page 2 Discussion and Recommendations 4. The meeting was opened by Mr. Uldis Vītoliņš, Head, Foreign Economic Policy Department, Ministry of Foreign Affairs. 5. After the opening session, the meeting was organized in the following five sessions: I. Status Report on the Intellectual Property Legislation II. Status Report on the Intellectual Property Rights Enforcement Legislation III. Current Situation with Intellectual Property Rights Enforcement and its Effects on Foreign and Domestic Investment IV. Government Agencies involved in Intellectual Property Rights Enforcement, their Structure and Roles V. Education and Training in Intellectual Property Rights Enforcement 6. A summary of the major discussion points and recommendations for each of the above sessions is given below. I. STATUS REPORT ON THE INTELLECTUAL PROPERTY LEGISLATION 7. At the beginning, the chair for the session, Ms. Irina Savelieva, Chairwoman of the UNECE Advisory Group, highlighted the overall status of the Intellectual Property (IP) legislation in Latvia and made an overview of the legislative and enforcement structure with reference to the background paper prepared by the consultants. 8. They noted that over the last several years, Latvia has implemented a number of laws in the field of IP in line with international standards and has adhered to several international conventions in this area. In general terms, the Latvian laws provide adequate IP protection. At the same time, with reference to the background paper prepared for the Consultative Visit, the representatives of the Advisory Group drew the attention of the meeting to several legal provisions, which either required clarification, or which the Latvian legislature might wish to revise in the future. 9. The Government representatives informed the meeting of forthcoming revisions in the Latvian IP legislation, which were intended to improve its level and foster intellectual property rights (IPR) protection. Patents 10. The meeting agreed that while the Patent Law was largely in line with the provisions of the existing international standards some changes were needed, particularly in the area of compulsory licensing. The Advisory Group experts also referred to several articles in the existing law and its practice of implementation, which might be worth revising in the future. The Government representatives made several clarifications regarding the legal texts currently TRADE/WP.5/AG.3/2001/4 Page 3 in force and informed the meeting of forthcoming amendments in the legislation and its interpretation. 11. It was also noted that the Latvian laws included a special provision stipulating that in case of inconsistency between the national law and international agreement to which Latvia was a Party, then the provisions of the international agreement should prevail. 12. The Deputy Director of the Latvian State Patent Office informed the meeting that the existing Latvian Patent Law of March 1993 with further amendments had been enacted before the TRIPs Agreement was signed; while generally in line with the latter, the Patent Law did not incorporate all the TRIPs Agreement provisions, including those on compulsory licensing. Latvia plans to amend the Patent law and include provisions relating to compulsory licensing. 13. The draft amendments to the Patent Law will stipulate that the compulsory licence can be granted when the patented invention has not being used for over four years. Compulsory licensing will be mandatory when a non-used patented invention is vitally important for the national economy. The terms of a compulsory licence will be set by the court and will take into consideration the TRIPs Agreement requirements. The importation of a patent-based product will be considered as a sufficient use so that no compulsory licensing will be applicable. 14. The amended Patent Law will keep the provisions of the 1993 Law referring to the burden of proof in the case of a process patent. The defendant has and will have to prove that the product is manufactured according to a process different from the patented process. Trademarks 15. A representative of the State Patent Office confirmed that, based on the current legislation, “smells” could be registered as trademarks under condition that these could be represented graphically. Thus far, there have been no applications for such trademarks and a mere description would be insufficient for registration due to the absence of a graphical representation. She also clarified that a trademark was registered with a five-year grace period during which the trademark could be not used. After the grace period expires, a cancellation of a trademark can be sought due to non-use. 16. As for trademark application formalities, when documents, that accompany a trademark application are submitted in a foreign language, the applicant is given three months to have them translated into Latvian. 17. The new Law on Trademarks and Indication of Geographical Origin (Trademarks Law) enacted in 1999 permits a “bad faith” argument to be used as a basis for revoking or invalidating a trademark registration. While the State Patent Office usually registers a “bad faith” trademark, a contestant can then make an opposition in the court and invalidate the registration. 18. The representatives of the State Patent Office clarified that in both trademark infringement cases and in opposition proceedings the “overall impression” was the general standard for determining likelihood of confusion between a registered trademark and one that could be seen as infringing. In civil cases, the courts look for actual confusion to determine whether a likelihood of confusion exists. In addition, the courts may also look at potential association TRADE/WP.5/AG.3/2001/4 Page 4 with the trademark owner in concluding the existence of likelihood of confusion. However, in administrative proceedings dealing with opposition of an application to register, likelihood of confusion is not dependent upon actual confusion. It was noted that there have been too few relevant court cases and no reliable research into the court practice to help practitioners determine appropriate legislation and the application of the likelihood of confusion standards in the courts. 19. It was noted that the protection of “well-known” trademarks was provided by Article 8.2 of the Trademarks Law. In addition, there is no need to register a “well-known” trademark to obtain protection in relation to dissimilar goods or services. 20. The Advisory Group drew the attention of the meeting to the lack of clarity in the Trademarks Law provision (Article 28.5) which allowed for measures to prevent further infringement with the possibility of destruction of the merchandise. This provision states that goods may be conveyed to the trademark owner “at cost to the owner”. However, it does not clarify, what kind of cost is borne by the owner, why it is incurred, who determines the cost and how it is calculated. In addition, it is not clear who receives the money thus paid by the owner. Therefore, in the opinion of the Advisory Group, the current language taken from a previous version of the Law is ambiguous and open to interpretation by the Courts, risking to cause confusion in the application of this provision. 21. The representatives of the State Patent Office explained that the trademark owner could take possession of the infringing goods to prevent further infringement of his rights. However, in this case he would have to cover the cost of manufacturing
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