Japan
Recent Legal Revisions for Preventing Copy Products
and Achievements of Seizure at Customs
1. Revisions of Customs Tariff Law
(1)Enlargement of Procedures for Recognizing Products as Infringing Intellectual Property Rights
Productswhich infringe intellectual property rights are seized at customs as import-prohibited goods. Under the revision of Customs Tariff Law, when the customs initiate the procedures for recognizing whether the goods in question are the products which infringe intellectual property rights, the customs will notify the intellectual property right holder of the name, address, etc. of the importer(s), caterer(s) and manufacturer(s), and also notify the importer(s) of the name, address, etc. of the intellectual property right holder.
(2)The revised Law has been enforced since April 1, 2004.
2. Revisions of Anti-Unfair Competition Law
(1)Strengthening of Civil Remedies
The provisions relating to proof of “acts of infringement” and “the amount of damages”in the Unfair Competition Prevention Law are revised to alleviate the degree of proof to the same level as that in the Patent Law.
The following is a gist of revisions:
①If an infringer denies a claim by the holder about specific manners in which the acts of infringement were done, the infringer shall specifically explain his acts in question.
②The court may issue an order of submissions of documents which are necessary not only to calculate the amount of damages but also to easily prove the acts of infringement. If the infringer refuses the submissions of the documents, the court will take the so-called “in-camera” procedures, in which only court judges are to examine the documents in question so as to determine whether or not there are any reasonable grounds for the infringer to refuse the submissions.
③In order to easily calculate the lost profits of the holder, it is possible to determine the amount of damages by multiplying the amount of products (which the infringer assigned) by the amount of profits per unit of the holder’s products.
④The parties in suit shall explain to an expert appointed by the court (such as the public accountant) any necessary matters.
⑤If it is highly difficult to prove the amount of damages in light of facts necessary for proof, the court may determine a reasonable amount as the amount of damages.
(2)Dealing with Illegal Acts by Abuse of Internet Commerce
In light of the increasing number of the recent Internet commerce, it is clarified under the revision that the online acts of offering computer programsby which any indication of goods of another is illegallydisplayed are considered the acts of unfair competition.
(3)Introduction of Criminal Penalty against Infringement of Trade Secrets
In view of strengthening Japan’s industrial competitive power, trade secrets are categorized as “origins of competitive power”. As a result, a criminal penalty against infringement of trade secrets has been introduced. Under the provisions relating to the criminal penalty, a person who illegally obtains, uses or discloses the trade secrets of another shall be subject to a penal servitude of not more than three years or a penal fine of not more than three million yen.
(4) The revised Law has been enforced since January 1, 2004.
3. Revisions of Copyright Law
(1)Strengthening of Civil Remedies
Provisions relating to proof of “acts of infringement” and “the amount of damages”in Copyright Law are revised to alleviate the degree of proof to the same level as that in the Patent Law.
The content of the revision in Copyright Law is the same as that in the Anti-Unfair Competition Law.
(2) The revised Law has been enforced since January 1, 2004.
4. Enactment of Law of Establishment of Intellectual Property High Court
(1)Establishment of Intellectual Property High Court
In order to substantiate and accelerate trials of intellectual property cases, the Law of Establishment of Intellectual Property High Court has been newly enacted. Under this newly enacted Law, an Intellectual Property High Court has been established within the Tokyo High Court (appellate court). Of cases under the jurisdiction of the Tokyo High Court, the Intellectual Property High Court willtake charge of intellectual property-related cases.
(2) The revised Law has been enforced since April 1, 2005.
- Achievements of Seizureon Products Suspicious to Infringe Intellectual Property Right at Customs in 2003
According to the “Achievements of Seizure on Products Suspicious to Infringe Intellectual Property Right at Customs in 2003” published by the Ministry of Finance, the number of cases relating to trademark rights of well-known brands attached to bags, etc. reaches 7,332 and makes up 98.7% of the total number of the cases of seizure. The number of cases relating to copyrights of popular characters used for straps for cell phones, etc. reaches 80 cases (making up 1.1%).
The number of trademark-related goods reaches approximately 590,000 points and makes up 76.6% of the total number of seized goods. The number of copyright-related goods reach approximately 140,000 points (making up 17.6%).
Enclosed please find “Achievements of Seizure on Products Suspicious to Infringe Intellectual Property Right at Customs in 2003” published by the Ministry of Finance for your reference.
[Table:Achievements of Seizure per Right]
Source:“Status of Seizure on Products Suspicious to Infringe Intellectual Property Right at Customs in 2003” published by the Ministry of Finance
Upper Column: No. of Cases
Lower Column: No. of Goods
2000 / 2001 / 2002 / 2003 / 2004 / Year on Year / Structural RatioPatent / 0 / 2 / 1 / 7 / 1 / 14.5% / 0.0%
0 / 1,036 / 5,000 / 39,200 / 550 / 1.4% / 0.1%
Utility Model / 1 / 0 / 0 / 0 / 1 / Total Increase / 0.0%
6 / 0 / 0 / 0 / 960 / Total Increase / 0.1%
Design / 32 / 15 / 14 / 13 / 12 / 92.3% / 0.2%
109,707 / 13,289 / 74,445 / 41,693 / 42,641 / 102.3% / 5.5%
Trademark / 1,719 / 1,478 / 2,727 / 6,859 / 7,332 / 106.9% / 98.7%
786,035 / 484,732 / 239,879 / 611,100 / 591,061 / 96.7% / 76.6%
Copy Right
Adjacent Right / 55 / 108 / 76 / 108 / 80 / 74.1% / 1.1%
100,263 / 602,830 / 690,654 / 318,751 / 136,094 / 42.7% / 17.6%
Total / 1,794 / 1,589 / 2,812 / 6,978 / 7,412 / 106.2% / 100.0%
993,565 / 1,099,001 / 1,009,958 / 992,908 / 771,306 / 77.7% / 100.0%
Note 1.The number of import declarations of general commercial cargos concerning infringing goods and international import mails accounts for “No. of Cases” and “No. of Goods”.
2.The total amount of cases per right and the total number in “Total” column do not match, since there are cases where plural rights were infringed.
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