STANDARD Twinning PROJECT FICHE
1 Basic Information
1.1 Programme:
/ National Action Programme 20071.2 Twinning number:
/ MD09/ENP-PCA/OT/041.3 Title:
/ Support to Implementation and Enforcement of Intellectual Property Rights in the Republic of Moldova1.4 Location:
/ Chişinau1.5 Sector:
/ Trade1.6 Beneficiary Country:
/ Republic of Moldova1.7 Duration:
/ 18 month2 Objectives
2.1 Overall objective
To improve the implementation and the enforcement of intellectual property rights in the Republic of Moldova, in line with the provisions in the EU-Moldova Action Plan chapter 39.
2.2 Project purpose
To strengthen the administrative capacity of State Agency on Intelectual property In the RM (AGEPI), Ministry of Justice (MoJ), Ministry of Internal Affairs (MoI) (Direction of Frauds), Ministry of Ecomy and Trade (MoE&C), Customs Service, to establish a constructive dialogue between all stakeholders and to effectively enforce intellectual property rights.
2.3 Contribution to the Partnership and Co-operation Agreement and the European Neighbourhood Policy Action Plan
The Partnership and Co-operation Agreement (PCA) between the European Communities and their members and the Republic of Moldova foresees (article 49) that:
§ The Republic of Moldova shall continue to improve the protection of intellectual, industrial and commercial property rights in order to provide for a level of protection similar to that existing in the Community, including effective means of enforcing such rights.
§ The Republic of Moldova shall accede to the multilateral conventions on intellectual, industrial and commercial property rights to which Member States of the Community are parties or which are de facto applied by Member States according to the relevant provisions contained in these conventions.
In Article 50 the Parties recognize that an important condition for strengthening the economic links between the Republic of Moldova and the Community is the approximation of the Republic of Moldova`s existing and future legislation to that of the Community. This approximation shall extend to the area of intellectual property. The Community shall provide the Republic of Moldova with technical assistance which may include the exchange of experts, the provision of early information especially on relevant legislation, the organization of seminars, training activities and aid for translation of Community legislation in the relevant sectors.
The European Neighbourhood Policy Action Plan (ENPAP) opened new partnership perspectives, including the possibility to provide the Republic of Moldova with technical assistance and support to meet EU norms and standards and ensure legislative approximation though mechanisms such as Twinning and TAIEX. The ENPAP lays down the strategic objectives of cooperation in the period 2005 - 2008. One of the comprehensive set of priorities fixed by the ENPAP, foresees ensuring a level of protection of intellectual property rights similar to that in the EU, including means of enforcement, in line with provisions in Articles 49 & 50 of the PCA.
In section 2.1 of the ENPAP the above mentioned priority is further elaborated:
§ Apply international standards in this area, including in particular the TRIPS agreement.
§ Ensure proper functioning of the judicial system to guarantee access to justice for right-holders and availability and effective implementation of sanctions.
§ Consolidation of the relevant institutional structures, as well as the offices for industrial rights, copyrights protection and collective societies. Extend cooperation with third country authorities and industry associations
§ Increase resources dedicated to enforcement, in particular for the customs authorities and the judicial system and increase seizures and actions against counterfeit/pirated goods in specifically targeted sectors.
§ Improve the enforcement of the relevant conventions provided for by PCA Article 49 (2). Conduct a study on piracy and counterfeiting in Moldova and ensure effective dialogue with rights holders.
An important purpose of this project is to strengthen Moldova's public administration in addressing the challenges arising in the given area from the Partnership and Co-operation Agreement and the EU-Moldova Action Plan, focusing on the shortcomings highlighted in the European Commission Progress Reports and on the jointly agreed tasks which remain to be fulfilled.
2.4 Link with National Strategy for Developing the National system of Protection and Use of Intellectual Property until 2010
The National Strategy for Developing the National system of Protection and Use of Intellectual Property until 2010 aims at the promotion of a coherent state policy in the field of intellectual property, compatible with the mechanisms of the EU and other states in the world, at ensuring an efficient protection of intellectual property rights and at the integration of the national system of protection of intellectual property in the economic, social and cultural development of the Republic of Moldova.
The main objectives of the strategy are the following:
§ To ensure optimal conditions for the creation and the protection of intellectual property.
§ To improve the normative basis of the IPR protection system.
§ To create a functional mechanism for fighting against IPR infringements and preventing the importation, fabrication and commercialization of counterfeit products.
§ To increase the level of public awareness about the importance and value of intellectual property.
§ To educate and train the agents, professionals, civil servants and specialists acting in the field of intellectual property.
§ To extend and develop the international cooperation in the field of intellectual property
§ To improve the information system and services for the protection of intellectual property.
3 Description
3.1 Background and justification
From the very first years of its independence, the Republic of Moldova, as many other countries in transition from a centrally-planned economy to a market economy, developed great efforts to establish a modern and competitive Intellectual Property System, compatible with the international and regional systems in this area. In 1991 the State Copyright Agency and in 1992 the State Agency on Industrial Property Protection were established in order to play a key role in the further development of a national IP system.
During the years 1993-1997, the two agencies focused on the development of the regulatory and institutional framework, while the years 1997-2000 were devoted to enforcement issues as well as to the preparation of accession to the World Trade Organization (WTO) and the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement).
In the above mentioned context, during the period of accession of the Republic of Moldova to the WTO, the legislation in the field of Intellectual Property has been essentially modified in order to comply with the requirements imposed by the TRIPS Agreement. This process included amending both laws on the protection of IP objects (trademarks and appellations of origin, patent inventions, new plant varieties, industrial designs, topographies of integrated circuits, copyright and related rights) and civil - administrative legislation.
In 2001, the Republic of Moldova became a member to World Trade Organization and met all the obligations contained in the provisions of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS) once the amendments to the Penal Code have been adopted by the Parliament of the Republic of Moldova (Law n. 446-XV of 30.12.2004 and Law n. 1143-IV of 29.05.2007), providing for penal sanctions against the infringement of intellectual property rights.
3.1.1 Legal framework
During the implementation of the Moldova-EU Action Plan, the Republic of Moldova's efforts were focused on the approximation of the national legislation to EU norms and standards. New laws have been drafted with support received from EU experts through TACIS projects. Public debates were organized for discussing those drafts.
§ The Law on the protection of Industrial Designs and Models (Law n. 161 of 12.07.2007) entered into force on December 1st, 2007. The Regulations on application of the Law 161/2007 are at the stage of coordination with the relevant ministries.
Modifications were introduced to the Government Decision on Fees for Legally Significant Acts in the Field of Protection of Subjects of Industrial Property, n. 774 of 13.08.1997. This Decision ensures the observance of national treatment in terms of fees for obtaining titles of protection on subjects of industrial property.
§ The new Law on the protection of inventions (Law no. 50-XVI of 07.03.2008) was adopted by the Parliament on March 7th, 2008.
§ The new Law on the protection of trademarks (Law no. 38-XVI of 29.02.2008) was adopted by the Parliament on February 29th, 2008.
§ The new Law on the protection of geographical indications, appellations of origin and traditional specialities guaranteed (Law no. 66-XVI of 27.03.2008) was adopted by the Parliament on March 27th, 2008.
§ The new Law on the Protection of Plant Varieties (Law no. 39-XVI of 29.02.2008) was adopted by the Parliament on February 29th, 2008.
§ The Draft Law on copyright and related rights has been finalised. It has been submitted for coordination to the interested authorities on October 2nd, 2007. The comments received from the respective ministries are under consideration.
After the entry into force of the new laws, the regulatory framework of the Republic of Moldova will provide a level of protection of Intellectual Property Rights similar to that of the EU. Nevertheless a further assessment seems to be necessary because it remains uncertain whether the amendments introduced to the initial recommendations of the EU experts under the procedure in the Parliament have not brought any substantial changes.
Finally it is envisaged to modify provisions related to administrative sanctions for infringement of intellectual property rights. In this respect, the proposed amendments were incorporated into the Draft Code of Administrative Offenses, voted in the Parliament in the first reading.
3.1.2 Institutional set up, responsibilities and organizational structure
The consolidation of the institutional capacities of the relevant bodies constitutes a part of a wide process of developing and up-grading the national intellectual property system as defined in the National Strategy for Developing the National system of Protection and Use of Intellectual Property until 2010. The institutional consolidation of the IP system started by merging, at the end of the year 2004, of the State Agency on Industrial Property Protection and the State Agency on Copyright in a single specialized body- State Agency on Intellectual Property (AGEPI).
AGEPI is acting in accordance with the Code on Science and Innovations (approved by the Law n. 259-XV of 15.07.2004) which provides the institutional and legal framework of the intellectual property system, the Government Decision on the creation of State Agency on Intellectual Property n. 1016 of 13.09.2004. AGEPI is a self-financed, independent decision making body, subordinated to the Government of the Republic of Moldova. It has the status of public enterprise and it is a self-financing body. It is independent in adopting decisions for legal protection of objects of intellectual property. The decisions of the State Agency can be appealed in the AGEPI Board of Appeal, special arbitration or in the court. AGEPI is representing the Government of Moldova in the international and regional organizations in the field of intellectual property and is responsible for the implementation at the national level of IPR legal provisions.
AGEPI organisational structure is as follows: the total number of employees was 220 in 2006; 195 in 2007 and 187 in May 2009 located in 6 Departments and two Directions. The Director General is the Head of the Office having two Deputy DGs. AGEPI Departments are: Inventions, Plant Varieties and Utility Models Dept., Trademarks and Industrial Designs Dept., Copyright and Related Rights Dept., Informatics and Logistics Dept., Promotion and Publishing Dept. and Legal Dept. There are also the Economy and Finance Direction and the Human Resources and Secretariat Direction. The State Agency is administrated by a Director General, appointed and dismissed from his position by the Government at the proposal of the President of the Academy of Sciences. The Director General has two deputies, which are appointed and dismissed from their position by the Government at his proposal. The structure and statute of the state agency are approved by the Government at the proposal of Director General. In absence of the Director General his obligations are performed by one of the deputies of the general director. The Director General employs and dismisses, applies disciplinary penalties and measures in accordance with the legislation in force.
There are no specialized courts dealing with the IPR issues in the Moldovan Judicial system. The present competences of courts to deal with IP issues are as follows:
Civil cases:
- Appeal Courts – first instance court
- Supreme Court of Justice - appeal instance
- Civil Board of the Supreme Court of Justice – highest instance court
Administrative cases:
- District Court– first instance court
- Appeal Courts – appeal instance
- Supreme Court of Justice – highest instance court
Since the civil procedure competence in examining the IP cases was modified. the Court of Appeal of Chişinau has the competence of examining the IP cases at the first instance with the possibility of appeal before the Supreme Court of Justice. These measures contributed to a specialisation of the above mentioned courts in settling litigations related to intellectual property. It is to be mentioned that according to the legislation in force, the rights holders could initiate a civil, administrative or penal proceeding for the enforcement of intellectual property rights. Although in the past, judges have attended several seminars on IPR matters, the number of judges professional and skilled in IPR is still very low.
The Board of Appeals of AGEPI has been reorganised as an administrative body responsible for extrajudicial solutions of the litigations in the field of intellectual property, provision which entered into force on January 1st, 2006. Over the year 2006, 97 appeals have been filed by third parties, 183 cases were examined and 146 decisions were pronounced by the Board of Appeals. In 2007, 114 new appeals were filed and 175 decisions pronounced. As a quality indicator of AGEPI experts activity, it should be mentioned that only 17 out of the 146 decisions released by the AGEPI Board of Appeals were appealed in court. According the Civil procedural code (art.33) the decision of the AGEPI Appeal Board could be appealed in the Court of Appeal. So, if the law foresees competence of the AGEPI Appeal Board then the claimant could not appeal directly to court.
The current legislation ensures a non discriminatory access for all rights holders. A dialogue has been initiated between the AGEPI, the Court of Appeals and the Supreme Court of Justice on identification of the best way to create an informational system on IP court decisions. As a result a Database accessible on-line on the AGEPI web-page was established (www.agepi.md/md/decizii_judecata/index.php). Legal decision summaries are published in the Official Bulletin of Industrial Property. The AGEPI disseminates information regarding the evolution of the legislative system via e-mail and the AGEPI web site, seminars and round tables. It also launched the Database “APPEALS” containing the appeals examined within the Board of Appeals of AGEPI which is permanently updated.