Amendments in IP Rights Romania
The Treaty of Accession between Romania and European Union which came into effect from January 1, 2007 has enabled the Trade Mark Rights owners to obtain and enforce rights in Romania in a similar way as in other European Union jurisdictions. Although Romania is less well known to people interested in IP protection than most countries of the Europe, the changes in this field have been helpful to Rights owners. Some of the latest amendments in the Law are: facility to file continuous application, explicit inclusion of experimental use for non-commercial reasons as an exception to the rights, the possibility for any revocation or cancellation of a patent, clear grounds for invalidity, hierarchy in time when the revocation proceedings and the invalidity proceedings can be initiated after grant, a Roche Bolar exemption. Some more changes regarding patent-related topics are being drafted, these include utility models enactment, data exclusivity law for pharmaceutical products and availability of supplementary protection certificates for medicinal products and plant protection products.
There is a draft amendment to the Trade Marks Law that should be in principle enacted by the end of 2007. The main change is to waive the ex officio citation for the relative grounds. In the enforcement field, the current system claims for infringing any IP rights as well as invalidity claims, either raised as a defence or as a counterclaim, are heard by a First Instance Court with further levels of jurisdiction as appeal and final appeal. After passing the first level, the second level of litigation in the court encompasses challenging the decision of the Board of Appeal of the Patent Office during the procedure of granting rights finally. Infringement lawsuits are usually brought at the Court where the defendant is domiciled or where the infringement took place. In practice most lawsuits are brought in the Municipal Court of Bucharest.
Although under the present system, legislative framework for obtaining and enforcing patents has been improved, yet there is still work to be done, particularly in some areas as:
Need for patent litigation experts:- In the absence of such experts, parts of the expert reports contain obvious mistakes from a technical point of view, which lead the judge into confusion, instead of highlighting the facts described.
Coordination of state institutions:- In Customs cases, both the Customs authorities and the police make ex officio seizures of the counterfeits, since they do not know who is the representative of a foreign right holder. So they send the same notification to several law firms assuming that one of them is the representative. In this connection, liaison with the Patent Office may not be helpful, as an IP owner may appoint a different representative for enforcement than for obtaining rights. This hurdle which lead to disadvantages to IP owners need improvement.
At present, Romania is well equipped to deal with the main aspects of obtaining and enforcing IP rights. However, as a young jurisdiction in IP matters while comparing with other countries of Western Europe, Romania needs continuous effort to improve practice in both areas.
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