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People, Laws and Courts

Customs - the INTA's perspective

he ECJ decision in Pharmacia & Upjohn v Paranova has been awaited with interest by the pharmaceutical industry. The decision, which was handed down on October 12, offers more hope to pharmaceutical companies in the battle against parallel importers than was expected. The ECJ has found that re-branding by a parallel importer to match the brand used in the country of import (where this differs from the country of export) cannot be challenged by the brand owner if such re-branding is objectively necessary in order that the parallel imported product may be marketed in the country of import.

New legislation governing the use of electronic signatures came into force in Spain in the form of Royal Decree Law 14/1999, on September 18 1999.

According to Law No 84/1998 on Trade Marks and Geographical Indications, a mark of certification is a mark indicating the fact that the products or services for which it is used are certificated by the owner of the mark concerning quality, material, the way of manufacturing of products or services carried out, accuracy or other characteristics.

The Polish Parliament (Seym) continues to work on improving the system of industrial property protection. It seems the long-lasting and thorough discussions on legal solutions which are to be introduced are coming to an end. However, it does not seem possible that the new Industrial Property Law will come into force on January 1 2000, as it was suggested by the Polish government. The above date of implementation of new regulations adapted to the standards of the European Union would be highly desirable because as from January 1 2000 Poland will be fully bounded by the TRIPs provisions.

Malaysia passed and gazetted the Franchise Act in December 1998 and it is expected to come into force in the near future. Once in force, the Franchise Act 1998 will apply throughout Malaysia to any franchise in Malaysia. At present, there is no franchise legislation and the franchise industry is supervised by the franchise division of the Malaysian government under the purview of the Ministry of Entrepreneur Development.

Shape trade marks are registrable in Australia by virtue of the Trade Marks Act 1995. As yet there is little case law on the subject but a recent decision of the Australian Trade Marks Office, Re Chocolaterie Guylian NV, gives an insight into considerations that will be made during examination of applications for registration of shape trade marks.

Despite the existence of the European patent, there is little cohesion between countries when it comes to enforcing or challenging patent rights.

When two patent owners come to blows, it is often impossible to respect national boundaries.