INTELLECTUAL PROPERTY AND REGISTRATION OF TRADEMARKS,
PATENTS INDUSTRIAL MODELS AND DRAWINGS,
INTEGRATED CIRCUIT DESIGNS; COPYRIGHT

    By courtesy of the State Office for Inventions and Trademarks - OSIM

Romania is signatory to international conventions in the intellectual property field, mainly the Paris Convention, the Berne Convention and the TRIPS Agreement. Its domestic legislation for all intellectual property objects is fully harmonized with the Community regulations and the international treaties and conventions.

    INDUSTRIAL PROPERTY

The State Office for Inventions and Trademarks - OSIM is the national administration in charge of granting protection for inventions, trademarks, geographical indications, industrial designs and others, in the territory of Romania, under the law and the provisions of international conventions and treaties to which the Romanian State is party.

An invention may be protected in Romania by the grant of a patent by OSIM, according to the national legislation, or by the grant of a European patent with effect in Romania, according to the European Patent Convention1).

The legislation regarding the patents consists of the Patent Law no. 64/1991 amended si republished on the basis of Law. no 203/2002 and the Regulations Implementing Law no. 64/ 1991.

   Patentable inventions

 

1. A patent shall be granted for any   invention having as a subject-matter a product or a process, in all technological fields, provided that it is new, involves an inventive step and is susceptible of industrial application. Explicit mentioning is given in the Law on the patentable inventions in the field of biotechnology.

2. Exclusion from the patentability of those inventions the commercial exploitation of which is contrary to the public order and morality;  plant varieties and animal breeds; essentially biological processes for plant varieties or animal breeds etc.
3. The following shall not be deemed being inventions: discoveries, scientific theories and mathematical methods; aesthetic creations; schemes, rules and methods for performing mental acts, playing games or doing business and computer programs; presentation of information.

Patent Application
The patent application, comprising the personal particulars of the applicant, accompanied by a description of the invention, claims and where appropriate explanatory drawings, with all written matter in Romanian, shall be filed with the OSIM to constitute a regular national filing.

Representation
For the persons not having their domicile or registered office in  the territory of Romania, representation by authorized representative shall be compulsory, with the following exceptions, in which one may act in his own name:a) filing a patent application to be accorded a filing date; b) payment of a fee; c) submitting a copy of a previous application; d) issuance of a notification by OSIM concerning any procedure under letters a), b) and c). Renewal fees may be paid by any person.

Publication of the Patent Application
Patent applications filed by the national route, for which the regular national filing has been effected,  shall be published as soon as possible  after the expiry of a period of eighteen months from  the date of filing or, if priority has been recognized, as from the date of priority.

Examination of the Patent Application
Examination of the patent application may be requested on the filing date of the patent application or, as the case may be, upon the opening of the national phase or within thirty months from one of these  dates.
OSIM through the Examination Board,  shall, on the basis of the patent application examination report and  within 18 months of the date on which examination of the application was requested,  decide  to grant a patent or to refuse a patent application or its subject-matter.

Grant of the Patent
The mention of the decision to grant a patent or to refuse a patent application shall be published in the Official Bulletin of Industrial Property within sixty days.
Any interested party shall be entitled to apply in writing, on valid grounds, to the OSIM for the revocation of the decision to grant a patent within six months of the publication thereof, if the decision was made without meeting  the provisions set forth in Articles 7 to 11 and of Articles 12, 13 and 18.

Term of protection
The term of protection of patents shall be of 20 years as from the date of filing of the application.
For patented pharmaceutical or plant protection products, supplementary protection may be granted, under the conditions laid down by the law2).
Throughout  the term of validity of the patent, the patent owner shall annually pay patent renewal  fees, starting with the 3rd year from the filing date.

 Rights
The patent shall confer on its owner an exclusive  right of exploitation throughout its term of protection.
 The right in the patent, the right to the grant of a patent and  the rights deriving from a patent shall be transferable, either wholly or in part.

PLANT VARIETY PATENTS

The Law no. 255/1998 on the protection of the new plant varieties is in compliance with the International Convention for the Protection of New Plant Varieties (UPOV) and harmonized with the European regulations in the field.

In order to obtain the protection, the applicant shall fill in a plant variety application containing information relating to: the species denomination in Latin and Romanian; provisional proposal for the new variety denomination; technical questionnaire describing the main characteristics of the variety in the standardized form as well as information concerning the previous exploitation of the variety.

The plant variety patent application shall be subjected to examination as to the form, substance and the technical examination to set out the fulfilling of certain requirements, particularly the distinctness, homogeneity and stability to allow the variety identification.

The validity term of a plant variety patent is of 30 years for trees and vine and 25 years for the other species.

   TRADEMARKS AND GEOGRAPHICAL INDICATIONS

Trademarks

The right to a mark shall be acquired and protected by registration with the State Office for Inventions and Trademarks according to the Law no. 84/1998.

Mark means a sign capable of graphic representation, serving to distinguish the goods or services of a natural or legal person from those of other persons.

Marks may be constituted by distinctive signs, such as: words, including personal names, designs, letters, numerals, figurative elements, three-dimensional shapes and particularly the shape of goods or of packaging thereof, combinations of colours, together with any combination of such signs.

The trademarks can be individual, when used by one company, collective or certification marks:

            - the collective mark serves to distinguish the goods and services belonging to other persons;

            -  the certification mark indicates that the goods or services it represents are certified by the trademark owner in respect of the quality, material, manufacturing process or manner of service, accuracy or any other characteristics.

 The right to a mark shall belong to the natural or legal person who was first to file an application for registration of the mark in accordance with the conditions laid down by the Law.

The application for trademarks registration is examined by OSIM both with regard to the form and contents, conditions set out by the law. Following the ascertaining of the fulfilment of such conditions and if there are no objections filed within the legal term, the trademark will be registered with OSIM. The applicant will be issued a registration certificate.

According to the provisions in force, trademark registrations are valid for 10 years from the date of application, and renewable for similar periods.

The trademark registration gives its holder the exclusive right over such trademark for the registered products and services.

The owner of the mark may request the competent judicial body to prohibit any person not having his consent from using such trademark in the course of trade.    

Geographical indications

 

The geographical indications of goods are protected in Romania by registration with OSIM according to the Law no. 84/1998 or to the international conventions to which Romania is a party. They may be used only by persons manufacturing or selling the products designated by the registered indications.

Geographical indications protected now or in future under bilateral or multilateral agreements concluded by Romania shall not be subject to the registration procedure established by the Law.

The associations of producers pursuing production activities in the geographical area relating to the products stated in the application shall be entitled to apply for registration of a geographical indication to the OSIM.

The right to use a geographical indication shall be afforded to the applicant for a period of ten years, renewable for an unlimited number of times, if the conditions under which the right has been obtained remain applicable.

   INDUSTRIAL DESIGNS

The object of the application may be registered to the extent in which it constitutes an industrial design, within the meaning of the Law, is new and has an individual character.

An industrial design shall be deemed to be new if no identical industrial design was rendered available to the public prior to the date of filing the application for registration or, if the priority was claimed, before the priority date.

The industrial designs are deemed to be identical if their characteristic features differ only in insignificant details.

An industrial design is deemed to have an individual character if the overall impression it has on the experienced user differs from the one made upon the same by any industrial design rendered available to the public before the date of filing the application for registration, or before the priority date, if the priority was claimed.

The industrial design determined exclusively by a technical function cannot be registered.

There cannot be registered an industrial design which shall be reproduced in the exact shape and dimensions in order to allow the product it is incorporated in or the product to which it applies to be mechanically connected or placed around another product, so as to allow each of the products to fulfil its function.

Throughout its period of validity, the certificate of registration confers on its owner an exclusive right of exploitation of the industrial design and the right of prohibiting third parties from performing the following acts without his permission: reproducing, manufacturing, marketing or offering for sale, using, importing or storing for the purpose of marketing, offering for sale or using a product having the industrial design incorporated or applied thereto.

The unlawful reproduction of an industrial design for the purpose of manufacturing products of an identical appearance, the manufacture, offering for sale, selling, importing, using or the storing of such products for the purpose of putting into circulation or using them, without having the consent of the owner of the certificate of registration of the industrial design, during the period of validity thereof, shall constitute the offense of counterfeiting of the industrial design and shall be punishable by imprisonment of between six months and two years or by a fine of 15 million to 30 million Lei.

Criminal proceedings shall be initiated by the preliminary filing of a complaint by the prejudiced party or ex officio.

For the caused prejudices, the owner is entitled to damages according to the Common Law, and may apply to the competent law court to order the seizure, or, as the case may be, the destruction of the counterfeited products; these provisions shall also apply to materials and equipments that were directly used for committing the offence of counterfeiting.

    TOPOGRAPHIES OF INTEGRATED CIRCUITS

The Law No.16/1995 protects the original topographies of integrated circuits, which are the results of their creators' intellectual effort.

The application for the protection of a topography of integrated circuits will be examined by OSIM, which will register the topography in the National Register of Topographies. At the same time, OSIM will publish the registration and will release a topography registration certificate to the entitled person, within 3 months from the official date of the application. The validity term of a topography is of 10 years from the official date of its registration.

   ENFORCEMENT OF INDUSTRIAL PROPERTY RIGHTS

With a view to enforcing the industrial property rights, besides the provisions in the specific laws there were elaborated special laws for fighting the counterfeiting, unfair competition as well as measures for enforcing the industrial property rights within the customs clearing operations. The main regulations in the field are:

- Law no. 11 of 29 January 1991 on suppression of the unfair competition, amended and completed by the Law no. 298/2001;

- Emergency Ordinance no. 100 of 14 July 2005 on the enforcement of industrial property rights, approved by the Law no. 280/2005;

- Law no. 344/2005 on measures for the enforcement of intellectual property rights within the customs clearing operations;

- Criminal Code provisions on counterfeiting and putting counterfeited products into circulation.

   LEGAL FRAMEWORK

- Patent Law No.64/1991., amended and comlpleted by the Low no. 203/2002; Goverment Decree no. 499/2003 concerning the Implementing Regulations of Law  no. 64/1991;

- Law no. 581/2004 on the supplementary protection certificate for medicaments and plant protection products; the law comes into force on the date of Romania’s accession to the European Union;

- Law on the protection of topographies of integrated circuits No. 16/1995, amended and comlpleted by the Low no. 337/2005;

- Law no. 255/1998 on the protection of new plant varieties, amended and comlpleted by the Low no. 119/2006; Goverment decree no. 200/2000 concerning the Implementing Regulations of Law no. 255/1998;  

- Law on marks and geographical indications no. 84/1998; Goverment decree no. 833/1998 concerning the Implementing Regulations of Law  no. 84/1998;

- Industrial Design Law no. 129/1992, amended and comlpleted by the Law no. 585/2002; Goverment decree no. 1171/2003 concerning the Implementing Regulations of Law  no.129/1992;

- Goverment ordinance no. 41/1998 concerning the fees in the field of industrial property protection and the use thereof  amended and comlpleted by the Law no. 381/2005.          

1)     In March 2003, Romania acceded to and became a Member State of the European Patent Convention.
 
2)      Law no. 581/2004 on the supplementary protection certificate for medicaments and plant protection products comes into force on the date of Romania’s accession to the European Union.

For more information: http://www.osim.ro

        COPYRIGHT

    By courtesy of the Romanian Copyright Office - ORDA

In the history of Romanian law, first provisions in the matter of protection of the copyright were statute by the entrance into force of the Law of the Press, on the 1st of April 1862, under the reign of Alexandru Ioan the 1st Cuza. Very important issues regarding the authors’ rights on their artistic or literary works were stipulate there, fourteen years earlier than the Berne Convention (1886) for the protection of literary and artistic works, which Romania accessed by the Law no. 152 from March 24, 1926. The above mentioned Law of the Press was amended several times, latest in 1904, when a fine in amount of the value of 1000 original copies and the seizure / confiscation of all illicit copies was stipulated in cases of infringements. The right to copy / to reproduce the work, the right to sale the work and the right to cession the work were established to the authors for their entire lifetime. After the death of the author, the mentioned rights were transmitted to his / her heirs to use it for 10 years from the day of demise. The same right could be recognized to foreign citizens, only under the condition of reciprocity.

In 1906, the 29th Congress of the International Association for Arts and Literature was held in Bucharest, the capital of Romania.

The Society of the Romanian Writers was founded, as a legal person, in 1912 and was very seriously involved in conception of the first Romanian law entirely and specially dedicated to copyright – Law no. 126 / 1923 on the literary and artistic propriety, which was amended in 1949, 1952 and 1955. Extremely modern and in total accordance with the “Bible of copyright” – the Berne Convention, as completed at Paris in 1896 and revised at Berlin in 1908, the 1912 law established to the authors both moral rights and patrimonial rights, and extended the term of protection for copyright to 30 years after the demise of the author in the benefit of the survivor spouse and of the descendents, with a few specific limitations for other categories of heirs (only author’s parents could have been  ascendants and only author’s brothers and sisters could have been collateral heirs) as regards the right just mentioned.

The 1923 Law was replaced by the Decree no. 321 from 1956 on the copyright, which provided for the protection of the intellectual works independently on the fulfilling or not of the legal formalities in the case.

The 1956 Decree established the protection of the moral and the patrimonial rights of the author for his/her entire lifetime and for another 50 years from the moment of demise in the benefit of the survivor spouse and of the descendants, but restrained the term of this right to only 15 years after the demise of the author in case of collateral and testamentary heirs.

The non-voluntary license / compulsory license and the right to remuneration were among the most important provisions, exclusive rights been established for work reproduction and for distribution of the work. In the same time, the amounts owed by the users were calculated exclusively by the State – The Council for Culture and Socialist Education.

The Decree was amended only once, in order to statute the singular criminal penalty - in the domain of copyright - in the entire communist era in the case of illegal appropriation of a work (plagiarism).

The Decree 321 / 1956 was repealed in 1996, and the Law no. 8 on copyright and related rights had entered into force on the 24th of June the same year.

For Romania, Law no.8 / 1996 is the first truly completely modern copyright and related rights law, compatible with all the Conventions and all the Treaties to which Romania had accessed and to the first five European Directives which were into force at the moment of the promulgation of the Romanian law.

It is important to observe that, through a major significant effort, Romania had recovered any delay and outrun the difficulties regarding the correlation of the internal law to the European and the international provisions in the matter of copyright and related rights. That was possible only by the adoption of a series of international juridical instruments, as the following ones:

The transposition of all the nine European Directives in the domain of copyright and related rights into the internal law of Romania must also be noticed here, together with the Bilateral Treaty between Romania and the United States of America, the Treaty for the Accession of Romania (and Bulgaria) to the EU and the EU - Romania Association Accord, among others.

After a series of amendments and supplementations Law no. 8 / 1996 on copyright and related rights establish a high level of protection for the rights holders. An entire arsenal of methods and instruments, specific to civil law, criminal law and administrative law are to be used in specific cases. Thus, civil procedures for investigation and combating the infringements of copyright were stipulated, along with substantial penalties both for minor offences and for crimes (for example – in cases of piracy, the penalty is imprisonment for 2 to 15 years for natural persons).

The Government of Romania had adopted a National Strategy for Copyright and Related Rights, for the period 2003 - 2007, and also an Action Plan for the implementation of the Strategy. According to these documents, a close, effective and very efficiently cooperation was started between all the institutions involved in administration, management and enforcement of copyright and related rights, from both public and private sector.

The year 2006 has a special signification for the Copyright Office of Romania (COR) which reaches its 10th anniversary in June.

The Copyright Office of Romania (COR) is the unique specialized national authority for settlement, administration of national registers, supervising, authorizing, arbitration and technical and scientifically expertise in the domain of copyright and related rights. COR is coordinated by the Government of Romania.

According to the Romanian law there are five National Registers: The National Register for Phonograms, The National Register for Computer Programs, The National Register for Videograms, The National Register for Private Copy, The National Register for Multipliers / Reproductions.

Soon it is to be done The National Register for Works, which will provide for every right holder the possibility to express and to claim his / her rights simply by producing a statement on personal responsibility.

All the information about copyright in Romania is accessible on www.orda.ro.

COR has been developed a strong partnership with all the collective rights management bodies operating in Romania and other organizations, from public and private sector, interested in studying, observing and developing new concepts and ideas in the field of copyright.

COR is working very efficiently, as well, with World Intellectual Propriety Organization (WIPO) and other international structures as part of the significant world wide effort for promoting and supporting the values of a modern copyright culture.

For more information: http://www.orda.ro

 

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