UNIVERSITY „SS CYRIL AND METHODIUS“ UNIVERSITY „SS CYRIL AND METHODIUS“ FACULTY OF LAW FACULTY OF LAW ““IUSTINIANUS PRIMUS IUSTINIANUS PRIMUS ““– – SKOPJESKOPJERegional mRegional master studies in intelaster studies in intelllectual ectual property property

ENFORCEMENT OF INTELLECTUAL PROPERTY -ENFORCEMENT OF INTELLECTUAL PROPERTY -INSPECTIONINSPECTIONMISDEMEANOR - LEGAL PROTECTIONMISDEMEANOR - LEGAL PROTECTION

Ass. Prof. Iskra Akimovska Maletic, PhDUniversity “St. Kliment Ohridski”, Faculty of Security - SkopjeMay 2012

TermsTermsTerms control and supervision – synonyms

monitoring, checking and evaluation activities, acts and behavior in order to insure their complete material and formal legality

SupervisionSupervision Subjects of

supervision◦ Active - subject that

performs and conducts supervision, usually from a position of power.

◦ Passive - legality of the work, acts and activities of the subject are assessed.

Principle of legality General responsibility

for all and everyone in the adoption of legal acts and taking tangible actions to comply with laws and regulations based on law.

Types of supervisionTypes of supervisionSupervision over administrative organs in

which administration is a passive subjectSupervision of administrative organs, in which

administration is emerging as an subject

Supervision of administrative organs Supervision over the legality of general acts -

preventive, additional Supervision over the legality of specific acts – instance Supervision over the legality of the operations –

inspection Supervision (audit) over the legality of the material and

financial performance – financial

InspectionInspection

Subject: control of the legality of the operations (activities) of state organs, institutions, corporations and other legal and natural persons.

Special authorities - inspectorates (sanitary, market, labor, veterinary, transport, environment ...)

Means: 1.administrative and legal measures (warning, reprimand, prohibition of professional activity, closure of premises, putting the goods in/out of traffic ...)2. Initiate appropriate action (misdemeanor or criminal)3. Imposition of penalties (fines)

Law on inspectionLaw on inspection

The basic principles Inspection Council Expert examination of

inspectors Exam to test

knowledge of inspectors

Rights, duties and powers of inspectors

Rights and obligations of the subject of supervision

Types of inspection Minutes, Conclusion,

Decision Remedy Publication of

inspection acts Specific actions in the

inspection procedure Coordinated inspection Misdemeanor provisions Supervision over law on

inspection

Law on inspectionLaw on inspection Inspection services - inspectorates, organizational

units within other organs of state administration and organizational units within local government and the City of Skopje which have inspection jurisdiction;

Inspection - supervision over the enforcement of the laws and regulations adopted pursuant to law in the activities of state bodies, local government and the City of Skopje, public enterprises, companies, institutions, legal and natural entities over which supervision has been performed, as well as imposing inspection measures and sanctions in order to eliminate the determined irregularities;

Basic principles of Basic principles of inspectioninspection Principle of legality Protecting the public interest Principle of equality, impartiality

and objectivity Principle of material truth Principle of questioning the subjects of the supervision Principle of independence Principle of transparency Principle of proportionality Principle of prevention Principle of subsidiarity (during the inspection provisions of

the Law on Administrative Procedure apply, unless this or another law otherwise provided. Certain questions concerning inspection can be regulated by special laws)

Types of inspection

Regular inspection - monitoring which is performed based on the work program of inspection services and includes supervision over the implementation of laws and regulations adopted pursuant to law.

Control inspection - made after the deadline specified in the inspection act adopted by the inspector,

Irregular inspection - unannounced surveillance based on the initiative submitted by state agencies, natural or legal persons, and in case of doubt of the inspector (ex officio).

MinutesMinutes

Clear and understandable. Review of factual condition concluded during

the inspection.

Data entered in the minutes: Name of the inspection service that is performing the

supervision, place, date and time when the supervision is performed, subject of supervision, names of inspectors, attending parties and their

representatives and proxies.

MinutesMinutes

As a rule Minutes shall be prepared on the place of the inspection.

The Minutes conclude the notes, statements and other relevant facts and circumstances.

Inspector and the subject of supervision sign the Minutes after the inspection. A copy of the minutes shall be given to the subject of the supervision.

As an exemption, when it is not possible to compile a Minutes during the inspection due to the volume and complexity of the inspection, its nature and circumstances, the Minutes are prepared in the offices of the inspection service, within three days of supervision with explanation of reasons for that.

A copy of the Minutes is submitted for signing to the subject of the supervision. If subject of supervision within eight days of receipt of the minutes did not stated in terms of the submitted Minutes or return signed to the inspector, shall be considered that the subject of supervision is compliant with the Minutes of the completed inspection.If the subject of supervision refuses to sign the Minutes, the inspector shall state the reasons for refusal.

ConclusionConclusion Resolves issues of procedure that will

occur during the inspection.

Written conclusion shall be taken only in cases where the appeal against the conclusion is allowed.

If during the inspection deficiencies are not identified or already identified deficiencies are removed during the inspection, or until adoption of the conclusion, the inspector is obliged to adopt a conclusion for termination of the procedure. (dissatisfied party has the right to appeal or other legal protection in accordance with law.)

DecisionDecision

If the law or other regulation is violated: concluded irregularities are noted with the Minutes

and the decision shall specify the period within the

irregularity shall be removed.

• If the law provides that a inspection measure can be determined for the irregularity, the inspector must determine this measure with the decision.

The Decision is adopted without delay and within eight days from the end of supervision, unless a law determines shorter term.

As an exemption, the inspector can impose inspection measures by oral decision on minutes, when he assess that it is necessary to remove immediate danger to life and health, property of greater value or when it is a issue of protecting other kind of public interests . (within three days of imposing the oral decision to adopt a written decision)

Legal remedyLegal remedy An appeal may be submitted against the decision

of the inspector within eight days from the receipt of the decision unless the law defines shorter term. Deciding by a Special commission of the ministry

composed of three members appointed by the Minister

Against the decisions of the inspector in an organizational unit organized as inspection service in the state administration and local government and the City of Skopje decide special commission of three members appointed from the minister, the head of the state administration, i.e. mayor.

Commissions decision on appeal shall make within 30 days from the receipt of the appeal.

SPECIAL ACTIVITIES DURING SPECIAL ACTIVITIES DURING THE INSPECTIONTHE INSPECTION

Sample collection Procedure for sample collection Presumption of compliance Super analysis Obligation to submit the seized items to the

competent authorities Providing conditions for temporary seizure of items Temporary ban on performing activity

SPECIAL ACTIVITIES DURING SPECIAL ACTIVITIES DURING THE INSPECTIONTHE INSPECTION Обврска за предавање на одземени

Temporary seizure of items due to provide evidence

The inspector may during the inspection supervision, temporarily seizure documents, goods and other items that can serve as evidence in appropriate procedure. (lasts until a final decision in the proceedings.)

Compulsory seizure of items

The inspector shall temporarily seizure items when provided their mandatory withdrawal, when one is committing an offense or crime or if it is necessary to prevent serious consequences, in accordance with law.

Mandatory issuance of certificate for the seized objects and documents

MISDEMEANOR MISDEMEANOR PROVISIONSPROVISIONS A legal entity shall be fined for misdemeanor if:

does not act on the request or order of the inspector does not allow the inspector continuous supervision does not

allow the inspector within the specific term access to premises, goods, documents or any other asset that is subject to inspection or

within the specified period does not provide or prepare accurate and complete data, reports, materials or other documents necessary to perform the inspection to the inspector.

Responsible person in the legal entity shall be fined for violations of paragraph (1).

An individual shall be fined for violations of paragraph (1).

o Before filing a request for initiating misdemeanor proceedings before a competent court for violations of this law, the inspector shall propose to the offender a settlement procedure pursuant to the Law on misdemeanors.

- inspection over the enforcement of the provisions of the Law on industrial property regarding the circulation and use of protected rights of industrial property

Law on Industrial Property InspectionState Market Inspectorate

Law on industrial propertyLaw on industrial propertyIf the inspector determines that the industrial property

rights have been violated temporarily will confiscate the items that were used for performing the infringements and will issue a certificate for temporary seized objects when there is:unauthorized use of protected invention,unauthorized use or imitation of protected industrial designunauthorized use or imitation of protected trademark andunauthorized use or imitation of a well-known trademark.

If the inspector determines that the industrial property rights have been violated shall issue a decision ordering to withdraw from use the equipment, assets and documents that were used for the misdemeanor and shall specify term for their withdrawal.

Law on industrial property Law on industrial property If legal or natural person does not comply

with the order, the inspector will : issue a decision on temporary prohibition of

professional activity (30 days for legal person, 15 days for natural person)

seal the premises in which the activity is done, confiscate the equipment, tools and the

documents relating to them and issue a certificate of temporary confiscated

equipment, tools and documents.

o Temporarily seized goods, equipment, tools and documents, the inspector is obliged to deliver to the competent court.

Law on industrial property Law on industrial property

In case of reasonable suspects that the goods put on the market are infringing the intellectual property, and before submitting a request by the holder of the right, the inspector will put off the market those goods with the Minutes.

For the measure immediately will inform the holder of the right, in order to submit a request to initiate action in accordance with law.

The inspector may require from the holder of the right to give all data necessary for confirmation of the reasons for doubt.

If within three working days from the notification, the holder of the right does not submit a request for taking action, the goods are put on the market.

Law on industrial property Law on industrial property – – misdemeanor provisionsmisdemeanor provisions A legal entity shall be fined for misdemeanor if:

◦ unauthorized uses ® for a trademark that is not registered;◦ unauthorized uses or imitate protected geographical name

and◦ on the request of the holder of the right did not submit the

documents and data related to injury Responsible person in the legal entity shall be fined for

violations of paragraph (1). An natural person shall be fined for violations of

paragraph (1).

New paragraph:For offenses stipulated with this Law, inspector is obliged to recommend the perpetrator a settlement procedure pursuant to a Law on misdemeanor, before submitting a request for initiating misdemeanor procedure.

State Market InspectorateState Market Inspectorate

LAW

During performing the inspection shall apply

 Law on General Administrative

Procedure

Law on inspection

organization

procedure

principles competencies

State Market InspectorateState Market Inspectorate

State Market Inspectorate

performs activities on

market inspection, as a body within the

Ministry responsible for

the affairs of the economy

•Inspection supervision over the enforcement of laws and regulations adopted according to law in the working of the companies, legal entities and natural persons (subject of supervision)

ORGANIZATIONORGANIZATION

Market executors

Director

State market inspectors

misdemeanor

Commission

other employees

SMI performs activities from its

jurisdiction through:

State Market InspectorateState Market Inspectorate In accordance with the law during the inspection inspector

has obligation:1) to act upon requests for initiation of an inspection procedure and to inform the applicant of the initiative;2) to notify the responsible person in the subject of supervision for the start of the inspection, unless the law otherwise provided or unless such notification would reduce the effectiveness of supervision, or protection of public interest, life and health of the people and property;

3) to identify himself in front of the subject of supervision or the responsible person or other authorized person in the subject of supervision;4) to compile a Minute of inspection supervision;5) to preserve the secrecy of classified information;6) to act lawfully, timely and in accordance with the Code of Ethics for Civil Servants and the Code of Ethics of the inspection service and7) to notify the responsible person in the subject of supervision for legal basis for the supervision.

State Market InspectorateState Market InspectorateDuring the inspection the inspector is authorized to:

1) check the files, documents, evidence and information in scope according to the subject of inspection, as well as to request from the controlled entity or its staff to prepare necessary documents and copies made in a foreign language to be translated in Macedonian language and certified by court interpreter;2) supervise the business premises and other premises which are not used as habitat, over vehicles and products;3) check the identification documents of persons for confirmation of their identity;4)require from the controlled entity or its employees in writing or oral explanation regarding the matters within the scope of inspection;5) require from the controlled entity or its employees to submit data on their suppliers that they have;6) require expert opinion when necessary for inspection;7) take samples without charge for further tests or checks in cases determined by law or other regulation;8) control the activities of controlled entity in selling products or providing services;9) provide audio and video recordings that can be used in supervision;10) made an inventory of goods caught in the business facility and 11) provide other necessary evidence.

SMI - INSPECTION SMI - INSPECTION

Subject of supervision:◦ confirms the identity of the copy with the original

files, documents, evidence and information with their stamp and signature or his employee signature

◦ is obliged to cooperate and on request of the inspector to allow unfettered access to premises, documents, electronic systems, means of communication or transportation or any other vehicle subject to inspection and to submit all the documentation necessary to perform the inspection.

SMI - INSPECTION SMI - INSPECTION If during the inspection the inspector finds deficiencies, he

shall instruct the entity to remove them in the exact term, unless otherwise provided by law. (entered in the Minutes)◦ without delay but not later than the deadline, shall act upon the

indication and shall inform the inspector that the deficiencies are removed

If the entity does not comply with the instruction of the inspector, the inspector within the term stipulated by law shall take measures

In cases when there is serious danger for life and health of the people the inspector is obliged to issue an oral order for urgent and current removing the identified deficiencies (noted in the Mminutes,) and the inspector immediately and within three days will bring a decision that will confirm the oral orders).

SMI - INSPECTION SMI - INSPECTION If the inspector concludes that the entity sells products

without documents for purchase from the supplier, these goods will temporarily confiscate.

When according to the law there is a possibility for confiscation of goods and items that were used for an criminal act or offense, the inspector may confiscate the products or objects and is obliged to issue a confirmation with an exact description and quantity of seized products or items.

In the application for initiation of criminal proceedings, or a request for initiation of misdemeanor proceedings the inspector is obliged to specify the measure.

Article 25 -In cases determined by law, the inspector shall make a decision to destroy the products.• In cases when the decision becomes executive, the product will be

destroyed.

SMI - INSPECTION SMI - INSPECTION

The inspector is obliged to issue a decision for prohibition the execution of business and to take measures for sealing the premises, in cases stipulated by law.

As a last measure after determining that there are not other measures for protection the life and health of the people from serious risk or providing evidence.

SMI - INSPECTION SMI - INSPECTION

Appeal may be submitted against the inspector’s decision or the Director’s decision within 8 days from the receipt

The appeal delay the execution of the decision, unless a special law otherwise provided.

The appeal decisions are made by a special Commission under the Ministry of Economy, composed of three members appointed by the Minister.

SMISMI – – misdemeanor misdemeanor provisionsprovisions State market inspectorate is misdemeanor

authority and procedure before the misdemeanor authority leads Commission for deciding on the misdemeanor.

In accordance with the provisions of this law against the Commission’s decisions which impose misdemeanor sanction one can initiate an administrative dispute before the competent court.

The Commission has the right to collect evidence and data necessary for determining the misdemeanor, and to do other things and take actions specified by this Law, Law on misdemeanor or other law.

SMI SMI – – misdemeanor misdemeanor provisionsprovisions The inspector may impose a fine for committing an

misdemeanor on the spot when it is determined by a separate law.

A legal entity shall be fined for misdemeanor if:• does not cooperate and at the request of the inspector does not

allow unfettered access to premises, documents, electronic systems, means of communication or transportation or any other vehicle subject to a inspection, and fails to submit the documentation necessary to perform the inspection and

• does not comply with the indication of the inspector to remove the identified deficiencies and notify the inspector that the deficiencies have been removed.

Responsible person in the legal entity shall be fined for violations of paragraph (1).

An natural person shall be fined for violations of paragraph (1).

Law on Copyright and Law on Copyright and Related RightsRelated Rights

Supervision over the implementation of the provisions of this law regarding organizations for collective management is performed by the Ministry of Culture as a competent state authority.

Control over the operation of the organization are accomplished by the competent bodies of the organization and by the holders of rights that govern the organization.

Law on Copyright and Law on Copyright and Related RightsRelated RightsSupervision by a competent state body Ministry of Culture may, at any time, from organization to request

information or data or reports for the execution and to inspect documents, annual financial report, financial and other documentation.

Duties of the organization –

Measures based on surveillance• If Ministry of culture determines that a general or a specific act is not in

accordance with this law, statute or agreement shall make a decision to stop the execution and initiate proceedings before the competent court to assess the legality of the act

• If Ministry of Culture assess during the supervision over the organization that the work is not in accordance with this law, the license, the statute or contract for establishing or general acts for the collection and distribution of allowances, will issue a decision in writing warning the organization and determines a reasonable period of at least 30 days to remove the irregularities. If this timeframe does not eliminate the irregularities, the license for collective management will be taken. (Against the decision one can initiate an administrative dispute before the competent court.)

Law on Copyright and Related Law on Copyright and Related RightsRights – –Types of protection and Types of protection and enforcement of other regulationsenforcement of other regulations

Criminal protection is accomplished under the provisions of the Criminal Code and the rules of criminal procedure.

Civil protection is accomplished pursuant to regulations for Civil Procedure, providing for claims, for obligations and Law on Copyright and Related Rights.

Misdemeanor protection is accomplished pursuant to the Law on misdemeanor and this law. The following can be fined:◦ legal entity responsible person in legal entity individual merchant individual who performs independent business or profession natural person.

Customs - misdemeanorCustoms - misdemeanor

Law on Customs Measures for Protection of Intellectual Property

Law on misdemeanor Conduct of misdemeanor proceedings and the

imposition of a sanction for committing an offense under the Law on Customs Administration, is the exclusive competence of the Customs Administration which is a customs misdemeanor authority and procedure before the misdemeanor authority lead the Commission.

Coordinative body for Coordinative body for intellectual propertyintellectual property Decision to establish a Coordinative body for intellectual

property as a permanent body. Composed of 11 members, representatives from the Ministry of

Culture, Ministry of Interior, Ministry of Finance, Customs Administration, the Public Revenue Office, Ministry of Economy, State Market Inspectorate, State Office of Industrial Property, Secretariat for European Affairs and Ministry of Justice.

In order to establish coordination in the implementation of protection of industrial property and copyright and related rights, cooperates on issues relating to market supervision and enforcement of protection of intellectual property, propose solutions, provides a coordinated approach to implement the proposed solutions and take actions related to creating a policy of industrial property and protection of copyright and related rights.