CHECKLIST OF ISSUES ON ENFORCEMENT[1]
Responses from Tajikistan
Civil and Administrative Procedures and
Remedies
(a) Civil judicial procedures and
remedies
1. Specify the courts which have jurisdiction
over IPR infringement cases.
Courts of general jurisdiction
and economic courts may have jurisdiction over IPR infringement cases,
depending on the legal status of the parties.
2. Which persons have standing to assert IPRs?
How may they be represented? Are there requirements for mandatory personal
appearances before the court by the right holder?
Any person, natural or legal,
whose intellectual property rights have been infringed upon, has the right to
file a petition to the court and request protection of rights. Any party to the
court proceedings, including those arising from IPR infringement, may choose to
represent himself or to be represented by a lawyer. There are no requirements for mandatory
personal appearances before the court by the right holder.
3. What authority do the judicial authorities
have to order, at the request of an opposing party, a party to a proceeding to
produce evidence which lies within its control?
The
court has the authority to order a party to the proceedings to produce evidence
that lies within its control, either on its own
initiative or at the request of an opposing party.
Party
who is not able to present the evidence requested by the court must notify the
court within five days from receiving the request and substantiate the reasons.
If the party fails to notify the court of its inability to provide the evidence
or if the court finds that the reasons for not providing evidence are
unsubstantiated, the court has the authority to fine such a party. However, imposition of a fine does not release the party to the proceedings
from the obligation to present the evidence to the court.
4. What means exist to identify and protect
confidential information brought forward as evidence?
Court proceedings are open to the public.
The proceedings may be closed to
the public if information containing the state secret is involved, and also in the case
where the party to the proceedings requests the court to close the proceedings
for the public in order to safeguard commercial or official or other
confidential information protected by law.
5. Describe the remedies that may be ordered
by the judicial authorities and criteria, legislative or jurisprudential, for
their use:
In
accordance with Article 1137 of the Civil Code of the Republic of Tajikistan,
upon the request of the right holder the court is authorized to decide on the
following:
- Recognition
of the right;
- Preventing
the actions infringing the right or creating a threat of its infringement;
- Reimbursement
of damages;
- Confiscation
of the material and equipment used to commit the infringement and material objects
created as a result of such infringement;
- Publication
of the judicial decision on the infringement committed.
In addition, in accordance with
Article 48
of the Law on Copyright and Neighbouring Rights, the
holder of the copyright and/or neighbouring right is entitled to:
- Recovery of the profit
gained by the infringer as a result of infringement of copyright or
neighbouring rights instead of compensation for damages;
- Payment of compensation
in the amount determined by the court instead of recovery of profit or
compensation for damages.
The counterfeited/pirated copies
of a work or a phonogram can be given to the right holder at his/her request.
Counterfeited/pirated copies of work or phonograms unclaimed by the right
holder are destined to destruction.
The specific criteria for the
use of remedies are not prescribed by the legislation. The implementation of
remedies would be decided by the court depending on the circumstances of the
case.
6. In what circumstances, if any, do judicial
authorities have the authority to order the infringer to inform the right
holder of the identity of third persons involved in the production and
distribution of the goods or services found to be infringing and of their channels
of distribution?
There is no provision in the
legislation that would expressly provide such authority to judicial authority.
7. Describe provisions relating to the
indemnification of defendants wrongfully enjoined. To what extent are public
authorities and/or officials liable in such a situation and what "remedial
measures" are applicable to them?
In accordance with Article 123
of the Code of Criminal Procedure of the Republic of Tajikistan
any person may file a complaint in respect of an activity, or the absence
thereof, of an official. The complaint
is to be lodged to the prosecutor overseeing legality of proceedings. The
prosecutor must consider the compliant within three days from the day of
submission. Where the circumstances of the case so warrant, the time limit may
be extended to seven days. As a result, it can be decided to annul or alter the
decision made during the proceedings that were subject to complaint. The
complainant and any interested persons must be notified of the decision.
The complaint against the
actions (or inactivity) of a prosecutor may be lodged the higher instance
prosecutor.
8. Describe provisions governing the length
and cost of proceedings. Provide any
available data on the actual duration of proceedings and their cost.
There are no specific provisions
that govern the length and the cost of the proceedings, which both may differ
depending on the circumstances of each particular case. Intellectual property
related cases are few and far between and the reliable data on their length and
costs are not available.
(b) Administrative procedures and remedies
9. Reply to the above questions in relation to
any administrative procedures on the merits and remedies that may result from
these procedures.
There are no administrative
procedures and/or remedies that would correspond to those discussed in the
above questions.
Provisional
Measures
(a) Judicial measures
10. Describe the types of provisional measures
that judicial authorities may order, and the legal basis for such authority.
Provisional
measures are regulated by Articles 89-98 of the Economic
Procedural Code of the Republic
of Tajikistan.
In accordance with these
provisions the economic court, at the request of the party to the proceeding or
of another interested person, may order urgent provisional measures aimed at
securing the claim or interest of the applicant.
The measures can be the
following:
- Arrestment of monetary
funds or other property belonging to the defendant and being in his/her
possession or in possession of other persons;
- Prohibition to the
defendant and other persons to effect certain actions concerning the matter of
dispute;
- Assignment to the
defendant the obligation to perform certain actions for prevention of spoilage,
deterioration of the disputed property;
- Transfer of the disputed property to the
plaintiff or other person for storage;
- Suspension of the
enforcement based on the disputed judicial civil order or other -document;
- Suspension of the sale of
confiscated property in case of filing a suit challenging the confiscation.
Several measures can be taken
simultaneously. The measures must be commensurate to declared claims.
Provisional measures are ordered for a period of time necessary to decide the
merits of the case.
11. In what circumstances may such measures be inaudita altera parte?
There is no provision that would
expressly provide for such measures to be taken inaudita altera parte.
12. Describe the main procedures for the
initiation, ordering and maintenance in force of provisional measures, in
particular relevant time-limits and safeguards to protect the legitimate
interests of the defendant.
The
request for provisional measure may be submitted to the court either
simultaneously with the application initiating the proceedings or at any time
in the course proceedings. The request for provisional measure must include inter alia the following:
- Proposed
provisional measure;
- Rationale
for the proposed provisional measure;
- Evidence
supporting the request.
The
court must consider the request not later than on the day following submission
of the request. Based on the review of the request the court may decide to
order the measure or to decline it. The decision on provisional measures must
be communicated to the applicant, parties to the proceedings and other persons
that may be affected by the measure, not later than on the day following the
issuance of a decision. In case of a decision to decline the request for
provisional measure, such decision is communicated to the applicant only. The
decision to order the provisional measure or to decline it may be appealed.
However, the appeal lodged against the decision to grant the provisional
measure does not stay the enforcement of such a provisional measure.
Upon the
request of the applicant or the defendant the court may replace one provisional
measure with another. Provisional measures
remain in force for a period of time necessary to resolve the merits of the
case. Upon the
request of the applicant or the defendant the court may reconsider the decision
to grant a provisional measure and decide to maintain it or cancel it. Any such
decision is subject to appeal.
According
to Article 98 of the Economic Procedural Code,
the court is also authorised to order preliminary provisional measures, whose
purpose is to protect interest of the applicant even before filing the claim.
The decision of the court granting the preliminary provisional measure must
contain the time period, not exceeding 20 days, for filing the claim by the applicant.
If the applicant fails to file the claim within such a time limit, the court
cancels the preliminary provisional measure.
13. Describe provisions governing the length and
cost of proceedings. Provide any
available data on the actual duration of proceedings and their cost.
There are no specific provisions
that govern the length and the cost of the proceedings, which both may differ
depending on the circumstances of each particular case. Intellectual property
related cases are few and far between and the reliable data on their length and
costs are not available.
(b) Administrative measures
14. Reply to the above questions in relation to
any administrative provisional measures.
There are no administrative
procedures and/or remedies that would directly correspond to those discussed in
the above questions.
However,
there are provisions that more correspond in their nature to criminal
provisions. Notably, Chapter 22 (Articles
375-381) of the Code of the Republic
of Tajikistan on
Administrative Offences provides for administrative offences related to
violation of intellectual property rights. The cases under these provisions are
decided by the courts of general jurisdiction and economic courts.
The administrative offences
under Chapter 22 of the Code on Administrative Offences are the following:
- Violation of exclusive rights of a patent
holder;
- Illegal production,
importation, storage, sale, renting or other illegal use of the copies of an
author's work or a phonogram;
- Illegal use of a trademark, service mark,
appellation of origin and the firm name.
The punishment for all of the
above is a fine and the confiscation of any objects of the administrative
offence.
Special Requirements Related to Border
Measures
15. Indicate for which goods it is possible to apply for the suspension
by the customs authorities of the release into free circulation, in particular
whether these procedures are available also in respect of goods which involve
infringements of intellectual property rights other than counterfeit trademark
or pirated copyright goods as defined in the TRIPS Agreement (footnote to
Article 51). Specify, together with
relevant criteria, any imports excluded from the application of such procedures
(such as goods from another member of a customs union, goods in transit or de minimis imports). Do the procedures apply to imports of goods
put on the market in another country by or with the consent of the right holder
and to goods destined for exportation?
In
accordance with Article 437 of the Customs Code of the Republic of Tajikistan,
the customs authorities are authorized to suspend the release of any goods
subject to copyright and related rights, trademarks, service marks and the
appellation of origin, whenever such goods are found to be moving across the
customs border or involved in any procedure administered under the customs
control.
Under
Article 444 of the Customs Code the IPR border measures are not applicable to
goods carried across the customs border by natural persons or sent by international
mail in small amounts, if such goods are intended for personal, family, home
and other non-entrepreneurial activities.
The procedure does not apply to
imports of goods put on the market in another country by or with the consent of
the right holder. The procedure is applicable to goods destined for
exportation.
16. Provide a description of the main elements of the procedures
relating to the suspension of the release of goods by customs authorities, in
particular the competent authorities (Article 51), the requirements for an
application (Article 52) and various requirements related to the duration of
suspension (Article 55). How have
Articles 53 (security or equivalent assurance), 56
(indemnification of the importer and of the owner of the goods) and 57 (right
of inspection and information) been implemented?
According
to article 441 of the Customs Code, if in the course of the customs clearance
or the customs control procedure the customs authority identifies the goods
indicated by the right holder as pirated/counterfeit, the customs authority is
authorized to suspend the release of such goods for 10 working days. Upon the
substantiated written request by the right holder or his representative this
time limit may be extended by no more than a further 10 working days, if such
person has applied to the competent authorities for protection of his rights.
The
decision to suspend the release of goods and extend the suspension of the
release of goods must be made in writing by the head of the customs authority
or his deputy.
The customs authority, not later
than the next day after the suspension of the release of goods, notifies the
right holder (his/her representative) about the reason and term of such
suspension, as well as notifies the declarant of the designation (name) and
address of the right holder (his/her representative), and notifies the right
holder (his/her representative) of the designation (name) and address of the
declarant.
The right holder is responsible
for the damages caused to the declarant, owner, recipient of goods as a result
of the suspension of the release of goods, if it was found that the goods
(including packaging and labelling) were not counterfeit.
Under Article 442 of the Customs
Code the right holder and the declarant and their representatives may take
samples and inspect the suspected goods (including examination and taking
photographs) subject to the written approval by the customs authority and under
the customs control. Upon the request of the right holder the customs authority
may provide additional information necessary to prove infringement of rights.
17. Describe provisions governing the length and cost of
proceedings. Provide any available data
on the actual duration of proceedings and their cost. How long is the validity of decisions by the
competent authorities for the suspension of the release of goods into free
circulation?
There are no specific provisions
that govern the length and the cost of the proceedings, which both may differ
depending on the circumstances of each particular case. There are no available
reliable data on their length and costs.
In accordance with the Article
440 of the
Customs Code, the validity of decision by the competent
authority for the suspension of the release of goods into free circulation
depends primarily on the right holder (or his representative), who can request the period of validity, however,
not exceeding five years from the date of inscription of the intellectual
property right into the register maintained by the customs authority. The
validity of a decision cannot in any case exceed the period of protection of
the intellectual property right concerned.
18. Are competent authorities required to act upon their own initiative
and, if so, in what circumstances? Are there any special provisions applicable
to ex officio action?
The customs authorities are
authorized to act ex officio provided that the
right holder has registered the intellectual property right with the customs
authority and that such right has been inscribed the appropriate register
maintained by the customs authority.
19. Describe the remedies that the competent authorities have the
authority to order and any criteria regulating their use.
The
customs authorities have no authority to order any remedies. They have the
authority to suspend the customs procedure only for the period not exceeding 20
working days. During that period the right holder may apply to competent
authorities and/or courts and request IPR protection in the appropriate civil,
criminal or administrative procedure, as described in answers to other
questions in this questionnaire. The customs authority must follow the
decision(s) of the court or other authority competent for protection of IPRs.
If there is no decision/instruction by the court or other authority within the
said time limit, the suspended procedure must continue and the goods eventually
must be released, provided that other conditions for the release have been
fulfilled.
Criminal Procedures
20. Specify the courts which have jurisdiction over criminal acts of
infringement of IPRs.
Courts of general have
jurisdiction over criminal acts of infringement of IPRs.
21. In respect of which infringements of which intellectual property
rights are criminal procedures and penalties available?
Criminal procedures and
penalties are available for infringement of the following intellectual property
rights:
-
Copyright and
neighbouring rights;
-
Inventions
(patents), industrial designs and utility models;
-
Trademarks.
22. Which public authorities are responsible for initiating criminal
proceedings? Are they required to do
this on their own initiative and/or in response to complaints?
Public prosecutor's office is
responsible for initiating criminal proceedings. Public prosecutor's office can
initiate criminal proceedings on their own initiative or upon the complaint of
the right holder whose right has been infringed.
23. Do private persons have standing to initiate criminal proceedings
and, if so, who?
Private persons do not have standing
to initiate criminal proceedings; however private persons may file a complaint
to the public prosecutor's office and request the prosecutor to initiate the
case.
24. Specify, by category of IPR and type of infringement where
necessary, the penalties and other remedies that may be imposed:
- imprisonment;
- monetary fines;
- seizure,
forfeiture and destruction of infringing goods and materials and implements for
their production;
- other.
Infringement
of any intellectual property rights provided for in the Penal Code of the
Republic of Tajikistan (copyright and
neighbouring rights, patents, industrial designs and utility models,
trademarks) is
punishable by either monetary fine or imprisonment, depending on the
circumstances of the case. In addition to fine and incarceration, confiscation of infringing goods and materials and implements for
their production may be ordered.
25. Describe provisions governing the length and any cost of
proceedings. Provide any available data
on the actual duration of proceedings and their cost, if any.
There are no specific provisions
that govern the length and the cost of the proceedings, which both may differ
depending on the circumstances of each particular case. Intellectual property
related cases are few and far between and the reliable data on their length and
costs are not available.
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