RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/331/Add.1
28 March 2002
(02-1594)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:   French
REVIEW OF LEGISLATION
Replies from Tunisia to Questions Posed by the European Communities
and their Member States, the United States, Japan and Switzerland
Addendum
By means of a communication from the Permanent Delegation of Tunisia, dated
4 March 2002, the Secretariat has received the following replies to the questions posed by the
European Communities and their Member States, the United States and Japan, as circulated in
documents IP/C/W/320, 316 and 322 respectively, and to the follow-up questions posed bySwitzerland, as circulated in document IP/C/W/315/Add.1.
_______________
EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. 
GENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health
and nutrition, and to promote the public interest in sectors of vital importance to your socio-
economic and technological development as mentioned under Article 8 of the TRIPS Agreement.
If so, please explain how such measures are consistent with the provisions of the TRIPS
Agreement.
Pursuant to Article 8 of the TRIPS Agreement, and with a view to protecting public health
and nutrition and promoting the public interest, Chapter XI of Law No. 2000-84 of 24 August 2000
on Patents provides for ex officio licensing.
Article 78.4 of the Law accordingly stipulates that "if required in the interests of public health,
patents issued for medicines, for products necessary for obtaining those medicines or for processes for
making such products may, in the event of the said medicines being made available to the public only
in insufficient quantity or quality or at abnormally high prices, be made subject to ex officio  licensing
at the request of the Minister of Public He alth, by order of the Minister of Industry".
B. COPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic  works, as specified in Article 9 of the TRIPS
Agreement, which requires Members to comply with Articles 1-21 of the Berne Convention(1971) and the Appendix to the Berne Convention.
Tunisian legislation protects the exclusive rights  of authors in their literary and artistic works.
Law No. 94-36 of 24 February 1994 on Literary and Artistic Property thus provides for economic and
moral rights.IP/C/W/331/Add.1
Page 2
As regards economic rights, Article 2 of La w No. 94-36 of 24 February 1994 provides that
copyright affords an exclusive right to carry out or authorize the carrying out of any of the following
acts:
(a) Reproduction of a work in any material form whatsoever, including phonograms,
audiovisual recordings and the like;
(b) communication of the work to the public by any means, in particular by public
performance such as performance in hotels and restaurants, by means of:
- a medium for the broadcast of recorded works;- broadcasting means;- modes of transmission by cable or satellite;
(c) communication of a broadcast work to the public:
- by wire, loudspeaker or any other device that transmits signs, sounds or
images;
(d) any translation or adaptation of a work.
This Article will be amended and supplemented in order to clarify certain concepts and adapt
it to developments in the field of copyright, in particular the WIPO Copyright Treaty (WCT) of
December 1996 and the TRIPS Agreement.
The draft law amending and supplementing Law No. 94-36 of 24 February 1994 provides, in
its Article 9-1, that authors' economic rights are exclus ive rights of the author to exploit his work or to
authorize its exploitation by third parties,  by way of any of the following acts:
(a) Reproduction of the work by any process, including printing, drawing, sound or
audiovisual recordings on magnetic tape, discs, compact discs or any computer systemand the like;
(b) communication of the work by any process, in particular by:
- public performance such as performance in hotels, restaurants, land, sea or air
means of transport, as in festivals and entertainment halls;
- drama or public performance;- a medium for wire or wireless broadcast of recorded works;- means of broadcasting transmission or reception and the like;  loudspeakers
and any other device that transmits signs, sounds or images;  satellites, cables,
computer networks or other similar means;
(c) any form of exploitation of the work in general on a physical medium, including rental
of the original and copies thereof;
(d) translation, adaptation, arrangement and other alterations of a work deemed under this
Law to be derivative works.IP/C/W/331/Add.1
Page 3
As regards moral rights, Article 9 of Law No. 94-36 of 24 February 1994 stipulates that an
author's moral rights include, in particular:
(a) a right of authorship;(b) a right of non-authorship;(c) a right to assume a pseudonym;(d) a right to oppose any modification or distortion or mutilation of his work;
(e) a right to present his work to the public by any means;
(f) a right to withdraw his work from circulation.
This Article will be amended in the draft law amending and supplementing Law No. 94-36 of
24 February 1994, in order to clarify practical questions such as:
- Indication of the name of the author, in the manner that is customary, each time that a
work is made available to the public and on each copy that reproduces the content of
the work on a physical medium;
- requirement of written consent by the author for any modification, addition, alteration
or mutilation of a work and any derogatory action in relation to the work which would
be prejudicial to the author's honour or reputation;
- indemnification of the authorized user in the event of any injury incurred as a result of
withdrawal of the work from circulation.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
As regards computer programs:
Article 1 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property includes
"software" (i.e. computer programs, as established during the Law's preparatory stages) among the
works covered by copyright.
All general provisions relating to copyright, the rights it confers and the obligations it entails,
the procedures for identifying infringements and the ensuing penalties thus apply to computer
programs to the extent that they are not contrary to the provisions of Chapter VII on Software.
Copyright covers computer programs in both source and object code.  The presumed author of
the computer program is the person under whose name the program has been released.  Programs
written by employees in the course of their duties belong to the employer.
The Law on Scientific Research (Law No. 96-6 of 31 January 1996, as amended by Law
No. 2000-68 of 17 July 2000 and its implementing rules and regulations) provides that governmentemployees are entitled to various advantages and incentives in respect of the exploitation of the results
of their research.
Computer programs and related documentation are the property of the producer.  The author
of a computer program has an exclusive right to carry out, authorize or prohibit certain acts relating toIP/C/W/331/Add.1
Page 4
his work (reproduction, communication to the public, broadcasting and adaptation) and enjoys the
economic and moral rights deriving from copyright.  Authorization granted by the author must be in
the form of a written contract containing a number of mandatory clauses.  Economic rights may be
assigned in part or in full.  Assignment of works not yet created is deemed null and void.
Computer programs may be adapted only within the limits of the rights assigned by the
author.
Unless expressly so authorized, the user of a legitimately acquired program may not produce
any copies thereof other than a backup copy.
The term of protection of computer prog rams under Law No. 94-36 of 24 February 1994 is
25 years.  In accordance with the TRIPS Agreement, ratified by Law No. 95-6 of 23 January 1995, the
draft law amending Law No. 94-36 has extended the term to 50 years.
Data compilations (or databases) are implicitly protected under Articles 1 and 6 of Law
No. 94-36 of 24 February 1994.  Amended Article 6.2 of the draft law expressly provides that authors
of works such as encyclopaedias or anthologies, folklore collections or databases which, by reason of
the selection or arrangement of their contents, constitute intellectual creations are protected without
prejudice to the rights of the authors of the original works.
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
Article 9-1 of the draft law amending and supplementing Law No. 94-36 of 24 February 1994,
which applies to all authors of protected works, stipulates that authors' economic rights are exclusive
rights of the author to exploit his work or to authorize its exploitation by third parties, by way of anyof the following acts:
(a) Reproduction of the work;(b) communication of the work to the public;(c) any form of exploitation of the work in general on a physical medium, including rental
of the original and copies thereof.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Law No. 94-36 of 24 February 1994 does not cover related rights.  Tunisia recognized the
protection of such rights in ratifying the TRIPS Agreement (Law No. 95-6 of 23 January 1995
ratifying the Uruguay Round Agreements).  Chapter 7 bis (new) of the draft law amending and
supplementing Law No. 94-36 of 24 February 1994 on Literary and Artistic Property deals with
related rights (rights of performers, producers of phonograms and broadcasting organizations), inaccordance with the TRIPS Agreement.
Holders of related rights enjoy the following rights:Performers (Article 47-3)IP/C/W/331/Add.1
Page 5
Moral rights
(1) A right, in respect of their sound or audiovisual performances, whether live or fixed
on phonograms, to be identified as performers, except where the manner of use of the
performance precludes such identification;
(2) a right to oppose any distortion, mutilation or other modification of such performances
that might be prejudicial to their reputation.
These rights are inalienable and imprescriptible, and may not be renounced.
Economic rights
(1) A right of broadcasting and communication to the public of unfixed performances,
except where the performance is already a broadcast performance;
(2) a right of fixation of an unfixed performance;(3) a right of direct or indirect reproduction of their performances, fixed on phonograms
or videograms, in any manner or form whatsoever;
(4) a right of distribution to the public of the original and copies of the fixation of their
performances on phonograms or videograms, by means of sale or any other transfer of
ownership;
(5) a right of commercial rental to the public of the original or copies of the fixation of
their performances on phonograms or videograms, even after these have beendistributed by the performers themselves or with their authorization;
(6) a right to make their performances fixed on phonograms or videograms available to
the public by wire or wireless means, in such a way that members of the public may
access the work from a place and at a time individually chosen by them.
These are exclusive rights of performers to authorize partial use of their performances.
Producers of phonograms or videograms (Article 47-5)- A right of direct or indirect reproduction of their phonograms or videograms, in any
manner or form whatsoever;
- a right of distribution to the public of the originals and copies of their phonograms or
videograms, by means of sale or any other transfer of ownership;
- a right of commercial rental to the public of the originals and copies of their
phonograms or videograms, even after these have been distributed by the producers
themselves or with their authorization;
- a right to make their phonograms or videograms available to the public by wire or
wireless means, in such a way that members of the public may access the work from aplace and at a time individually chosen by them.
These are exclusive rights of producers of phonograms or videograms to authorize the use, in
full or in part, of their phonograms or videograms.IP/C/W/331/Add.1
Page 6
Broadcasting organizations (Article 47-8)
- A right of fixation and recording on a physical medium of their broadcasts or
reproduction of such recordings;
- a right to re-broadcast their broadcasts;- a right of communication of their broadcasts to the public in places accessible to the
public, subject to payment of an entrance fee.
These are exclusive rights of broadcasting organizations to authorize the use, in full or in part,
of their broadcasts.
6. Please state whether your legislation provides  for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Article 47-10 of the draft law amending a nd supplementing Law No. 94-36 of 24 February
1994 on Literary and Artistic Property stipulates that performers, producers of phonograms or
videograms and broadcasting organizations are subject to the limitations on and exceptions to
copyright, meaning that a work may be used without the author's permission for:
- personal and private use,- educational purposes, and
- information purposes,
provided that this does not conflict with a normal exploitation of the work and does not unreasonably
prejudice the legitimate interests of the right holder.
7. Please state the terms of protection of each right described above and the work or
subject matter to which it applies.
Copyright
The draft law amending and supplementing Law No. 94-36 of 24 February 1994 on Literary
and Artistic Property has unified the term of copyright protection, extending it to 50 years.
Article 18 (new) of the draft law amending and supplementing Law No. 94-36 of
24 February 1994 provides that protection of authors' economic rights subsists for the lifetime of the
author and for 50 years counted from 1 January of the year following the author's death or of the date
determined in a finding of presumed death in the event of absence or disappearance.
In the case of works of joint authorship, protection subsists for 50 years counted from
1 January of the year following the death of the last  surviving author or of the date determined in a
finding of presumed death in the event of absence or disappearance.
In the case of anonymous or pseudonymous works, protection subsists for 50 years counted
from the date on which the work was first published.  Copyright is exercised by the publisher or
distributor of the workIP/C/W/331/Add.1
Page 7
Where a pseudonym does not conceal the author's identity from the public, or where the
author of an anonymous or pseudonymous work reveals his true identity, the term of protection is that
provided for in paragraph 2 of this Article.
In the case of works published after the author's death, protection subsists for 50 years
counted from 1 January of the year following that in which the work was first published.  Copyright is
exercised successively by the executor, heirs, spous e or any other heirs to whom the rights of the
author accrue.
 In the case of photographic works, Article 19 (new) stipulates that protection subsists for 50
years counted from the date on which the work was created.  The same term is provided for software
(new Article 47).
In the case of cinematographic or audiovisual works, the term of protection is also 50 years
counted from the date of the first lawful public performance of the work.
Where performance has not taken place, the term of protection is 50 years counted from the
date on which the first reference copy was made (Article 42-1 of the draft law amending and
supplementing Law No. 94-36 of 24 February 1994).
Related rights
The term of protection of performers' rights is 50 years counted from 1 January of the year
following that in which the performance was fixed on a phonogram or videogram.
The term of protection of the rights of producers of phonograms or videograms is 50 years
counted from the year following that in which the phonogram or videogram was released or, failingsuch release, 50 years counted from 1 January of th e year following that in which the fixation of the
phonogram or videogram took place.
Protection of the rights of broadcasting organizations subsists for 20 years counted from 1
January of the year following that in which:
- The fixation took place, in the case of phonograms or videograms and the
performances fixed on them;
- the performance took place, in the case of performances not fixed on phonograms or
videograms;
- the broadcast took place, in the case of broadcasts.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligatio n of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
Article 18.1 of the Berne Convention provides for retroactive effect in respect of works which
existed at the moment of the Convention's coming in to force.  It stipulates that such works may be
protected where the term of protection has not yet expired in the country of origin.
Article 18.2 stipulates, as an exception to the above principle, that "if […] through the expiry
of the term of protection which was previously granted, a work has fallen into the public domain of
the country where protection is claimed, that work shall not be protected anew".IP/C/W/331/Add.1
Page 8
Under Tunisian law, the principle of non-retroactivity of laws is deemed to be a general
principle of law settling the problem of conflict of laws in time, meaning that a new law does not
apply to acts and facts that were governed by a pre-existing law.
This principle is enshrined in the provisions of the Tunisian Constitution governing criminal
matters.  Article 13 of the Constitution thus stipulates that the penalty is in personam  and cannot be
pronounced except under a provision of pre-existing legislation.
Likewise, Article 1 of the Penal Code stipulates that "no one may be punished except under a
provision of a pre-existing law.  Where a law more favourable to the accused is enacted after the
occurrence of the fact but prior to the final ruling, that law alone shall apply".
The principle of non-retroactivity of laws recognizes exceptions in civil matters.  Among
these exceptions is a text that expressly provides for retroactivity, i.e. that allows retroactive
application.  Article 18.1 of the Berne Convention, duly ratified by Tunisia (which is one of the 10
countries that established the Berne Convention), may be regarded as one of the exceptions where
retroactivity (in civil matters) is recognized.
9. Please explain whether the droit de suite  provided for in Article 14 ter of the Berne
Convention is protected in your legislation.
Article 25 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property provides
for authors' droit de suite  in manuscripts and three-dimensional works.
This Article stipulates that "the authors of manuscripts and three-dimensional works shall
have an inalienable right, despite any assignment of the original work, to participate in the proceeds of
any sale of the work made at auctions or through a dealer.
After the death of the author, this resale royalty right shall subsist for the remainder of the
current Gregorian year and for the following 50 years.  Five per cent of the proceeds of the sale shall
be levied for the benefit of the author or his heirs".
C. TRADEMARKS
10. Please give the definition of a sign under your national legislation and explain under
what conditions it is protectable.
According to Article 2 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks,
marks are visible signs that distinguish products offered for sale or services provided by a natural or
legal person.
Article 2 further provides that marks consisting of appellations of any kind, figurative signs
and sounds are eligible for protection.
Under the terms of Articles 3 and 5 of the Law, however, signs devoid of distinctiveness,
signs infringing prior rights, well-known marks and marks contrary to ordre publique  and morality are
excluded from protection.
Moreover, Article 6 of the Law specifies that ownership in a mark is acquired by registration
with the industrial property agency.
11. Please confirm whether or not services are a protectable subject-matter in your
trademark law.  Please confirm if signs, such as trade names, are protectable.  Please describe if
elements such as sound, perfumes and containers are protectable.IP/C/W/331/Add.1
Page 9
Service marks, like trademarks, are protected in Tunisia under Law No. 2001-36 of
17 April 2001.  Article 1 states that "the object of this Law is to establish rules relating to the
protection of trademarks and service marks".
In Tunisia, trade names are protected under the law on trade registration and may also be
registered as trademarks if the owners use them as such.
Article 5(c) of the Law of 17 April 2001 on trademarks stipulates that a sign that infringes a
trade name may not be adopted as a trademark, if ther e is a risk of confusion in the mind of the public.
Under the terms of the above Law, only sounds (Article 2(c) and shapes of products
(Article 2(b)) are eligible for trademark protection.
12. Please explain what the requirements of use are, if any, as a condition for trademark
registration.  Please explain the definition of use and the conditions of maintenance of a
registration in that respect.
Under the terms of Article 34 of Law No. 2001-36 of 17 April 2001, the owner of a mark
who, without good cause, fails to make serious use of it, for at least one of the goods or services
covered by the registration, during an uninterrupted period of five years will be liable to forfeit his
rights.
However, use is not a prerequisite for trademark registration.As regards the definition of use, Article 34.2 specifies that "serious use of a mark shall
include:
- Affixing the mark to goods or their packaging for marketing purposes;- use of the mark in a modified form that does not change its distinctive character;
- use made with the consent of the owner of  the mark or by any person authorized to
use a collective mark".
13. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
Registration of trademarks is renewable indefinitely following expiry of the term of protection
of 10 years counted from the date of filing the application for registration (Article 16 of the Law of
17 April 2001).
14. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
The special requirements concerning use of a trademark are as follows.
Under the terms of Article 34 of Law No. 2001-36 of 17 April 2001, action for forfeiture of
the rights of the owner of a mark may not be brought where, in the interval between expiry of the five-
year period and the filing of such action, serious us e of the mark has either begun or been resumed.
However, serious use of the mark does not constitute an obstacle to forfeiture if undertaken
within the three months preceding the action for forfeiture and after the owner became aware of theIP/C/W/331/Add.1
Page 10
possibility of an action for forfeiture.  It is the responsibility of the owner of the mark against whom
the action for forfeiture is brought to prove that the mark has been used.
D. GEOGRAPHICAL INDICATIONS
15. Please explain whether or not your trademark registration authority refuses a
trademark application if it contains a geographical indication.
Under Article 20 of Law No. 99-57 of 28 June 1999 on registered appellations of origin and
indications of source of agricultural products, the industrial property agency may not grant any
trademark for a registered appellation of origin or an indication of source if the trademark application
is filed after the territory covered by the registered appellation of origin or the indication of source has
been defined and made public.
If the trademark application was filed before the territory in question was defined and made
public, the Ministry of Agriculture may oppose registration of the mark, pursuant to Law No. 2001-36
of 17 April 2001 on the Protection of Trademarks.
16. Please give the definition of a geographical indication in your legislation.
Law No. 99-57 of 28 June 1999 on the protection of appellations of origin defines a registered
appellation of origin as the name of the country, natural region or part of a region from which the
product originates and as deriving its value and specific features from its geographical environment,which consists of natural and human factors.
The term "natural factors" generally refers to the geographical environment in which the
product originates, including characteristics relating to land, water, plant cover and climate.
The term "human factors" encompasses in particular production, manufacturing or processing
methods and the specific techniques acquired by the producers or manufacturers in the region
concerned.
Production methods must derive from ancient,  stable and well-known local traditions.
The term "indication of source" is defined in Article 3 of the Law as the name of the country,
natural region or parts of regions from which the product derives its characteristics and reputation and
where it is produced, processed or manufactured.
17. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
According to Article 2 of Law No. 99-57 of 28 June 1999 on registered appellations of origin
and indications of source of agricultural products, the link between the characteristics of a
geographical indication and its geographical origin is that a product originating in a given region
derives its value and specific features from its geographical environment, which consists of naturaland human factors.
18. Please describe how additional protection is granted by your legislation to wines and
spirits.  Please mention other types of products, if any, covered by this additional protection.
In Tunisia, wines and spirits are protected under Law No. 99-57 of 28 June 1999 on registered
appellations of origin and indications of source of agricultural products.  The Law does not provide for
additional protection for wines and spirits.IP/C/W/331/Add.1
Page 11
19. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in
your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of
names considered as generic in your jurisdiction.
The exceptions under Article 24 of the TRIPS Agreement are provided for in Article 20 of
Law No. 99-57 of 28 June 1999.  This Article stipulates that the industrial property agency may not
grant any trademark similar to an indication of sour ce if the trademark application is filed after the
territory covered by the registered appellation of origin or the indication of source has been defined
and made public.
E. INDUSTRIAL DESIGNS
20. Please explain whether or not your legislat ion extends to the protection of designs
dictated essentially by technical or functional considerations.  Please explain how textile designs
are protected.
Article 2 of Law No. 2001-21 of 6 February 2001 on the Protection of Industrial Designs
specifies that the Law applies to "any new design, any new three-dimensional shape or any industrialproduct that differs from similar designs by having either a distinct and recognizable configuration
conferring novelty or one or more outward effects giving it a new and characteristic appearance".
Article 2.2 provides that "if the same subject-matter may be regarded as both a new industrial
design and a patentable invention and if the elements that constitute the novelty of the industrialdesign are inseparable from those of the invention, the said subject-matter may be protected only in
accordance with the provisions applicable to patents".
Textile designs are protected on the same terms as all other products, but they also enjoy the
following advantages:
- Article 15:  possibility of delaying publication;
- Article 10:  term of protection, at the ap plicant's choice, of five, 10 or 15 years;
- collective filing.
21. Please explain how your legislation protects right holders of a design against importing
of articles bearing embodied or copied design.
Article 4 of Law No. 2000-21 of 6 February 2000 on the Protection of Industrial Designs
provides that any creator of an industrial design or his successors in title has the exclusive right toexploit or sell the design, without prejudice to the rights conferred by other statutory provisions and in
particular the legislation relating to the protection of literary and artistic works.
Third parties not having the consent of the owner of an industrial design or his successors in
title are prohibited from making, selling or importing goods bearing a design which is a copy, orsubstantially a copy, of the protected design, where such acts are undertaken for commercial purposes.
To enforce the above rights, the Law contains an entire chapter (Chapter V) relating to border
measures providing for suspension of the free circulation of counterfeit industrial designs.
22. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.IP/C/W/331/Add.1
Page 12
Law No. 2000-21 of 6 February 2000 on the Protection of Industrial Designs does not provide
for the right to issue compulsory licences for industrial designs.
23. Please indicate for what period of time your legislation grants protection for industrial
designs.
Under the terms of Article 10 of the aforementioned Law, an industrial design is protected, at
the applicant's choice, for a period of five, 10, or 15 years at most.
F. PATENTS
24. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
Article 4 of Law No. 2000-84 of 24 August 2000 on Pa tents stipulates that "an invention shall
be considered new if it does not form part of the state of the art".
The state of the art comprises everything that has been made accessible to the public by
written or oral description, use or any other means prior to the date of filing the patent application or
the date of priority validly claimed for this application.
According to Article 5 of the Law on Patents, in vention must also involve an inventive step,
i.e. it must not obviously derive, to a person skilled in the relevant field, from the state of the art on thedate of filing the patent application.
Article 6 of the Law states that an invention is susceptible of industrial application if its
subject-matter can be produced or used in any type of industry or in agriculture.
25. Please explain whether or not in your legislat ion, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions a re provided for, please describe in detail how
these exclusions are applied in legal as well as practical terms.
Law No. 2000-84 of 24 August 2000, which deals wi th the protection of inventions, provides
for exclusions from patent rights.  These exclusions are listed in Articles 47, 48, 49 and 50 of the Law,
which stipulate that the exclusive rights conferred by a patent do not extend to the following acts:
- Acts performed privately for non-commercial purposes;
- acts performed for experimental purposes relating to the subject-matter of the
patented invention;
- the extemporaneous preparation for individual cases in a pharmacy of medicines on
the basis of a medical prescription, or the acts relating to the medicines thus prepared;
- the offer, importation, stocking or use, on Tunisian territory, of the patented product
or the product obtained by a patented process, after the product has been lawfully
placed on the market of any country by the patent holder or with his explicit consent;
- acts required for the production of generic drugs; products resulting from such acts
may not be exploited for commercial purposes until the term of protection of thepatent has expired;IP/C/W/331/Add.1
Page 13
- the use of patented subject-matter on board aircraft, land vehicles or foreign ships
which temporarily or accidentally enter the airspace, territory or territorial waters of
the Tunisian Republic.
26. Please explain whether your legislation prov ides for the exclusion of inventions from
patentability based on ordre public or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Article 3.2 of the Law of 24 August 2000 protecting inventions provides that "a  patent may
be not delivered for an invention the publication or working of which would be contrary to morality,
ordre public , public health or environmental protection".  The Article further specifies, however, that
"working the patent may not be considered as such merely because it is restricted by a statutory orregulatory provision".
As an example, in practice anyone may not manufacture cigarettes or produce wine, but
anyone may file patent applications in these fields.
27. Please explain whether or not diagnostic, therapeutic and surgical methods are excluded
from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
Diagnostic, therapeutic and surgical methods practised on the human or animal body are
excluded from patentability under Article 2(d) of the Law of 24 August 2000.
This does not, however, apply to preparations and in particular to products and compositions
used to put such methods into practice.
28. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation.  If so, please explain the relevant section of your
legislation and explain its formulation.
Plants, animals and essentially biological proces ses for the breeding of animals and plants are
excluded from patentability under Article 3 of the Law.
This does not, however, apply to medical biological processes or the products of such
processes.
29. Please describe how micro-organisms, non-essentially biological processes,
microbiological processes and plant varieties are prot ected in your legislation.  Please explain, in
this respect, the relevant sections of your legislation.
Medical biological processes, including micro-organisms and the products of such processes
are patentable (Article 3 of Law No. 2000-84 of 24 August 2000 on Patents).
Plant varieties are protected in Tunisi a under Law No. 99-42 of 10 May 1999 on Seeds,
Seedlings and Plant Varieties.
30. Please explain how your legislation protects  patent right holders against the importing
and against the offering for sale of a patented invention.
Article 46 of Law No. 2000-84 of 24 August 2000 pr ovides that a patent confers an exclusive
right of exploitation on its holder or his successors in title, meaning that third parties are prohibited
from performing the following acts without the consent of  the patent holder or his successors in title:IP/C/W/331/Add.1
Page 14
- Making, offering, placing on the market or using a product which is the subject-matter
of the patent, or importing or stocking a product for such purposes;
- using the manufacturing process that is the subject-matter of the patent;
- offering, placing on the market or using the product obtained directly by a process
which is the subject-matter of the patent, or importing or stocking a product for such
purposes.
For the purpose of enforcing the above rights, the Law contains an entire chapter
(Chapter XIII) relating to border measures providing for suspension of the free circulation of
counterfeit products.
31. Please state if your legislation provides for patent product protection of pharmaceutical
and agricultural chemical products.  In the affirmative, please indicate the legal reference.
Under the terms of Article 1 of the Law on Patents, patent protection is afforded for any
invention of a product or manufacturing process.  Pharmaceutical and agricultural chemical products
are therefore patentable.
32. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
Article 1 of the Law on Patents states that "any invention of a product or manufacturing
process may be protected by a document referred to as a 'patent'".
Article 85.2 of the Law specifies, however, that "if the patent subject-matter is a product
manufacturing process, the court is entitled to order the defendant to prove that the process used to
obtain an identical product is different from the patented process.  If the defendant fails to provide
such proof, any identical product manufactured without the consent of the patent holder shall be
presumed to be obtained by the patented process if the product is new".
33. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prior inform consent to its use).  If such additional
conditions exist, please point out the relevant le gislation and describe the additional conditions
in detail.
Tunisian legislation does not provide for any additional conditions other than that the
invention must be disclosed in a manner sufficiently clear and complete for it to be carried out by a
person skilled in the art in the relevant field of technology (Article 21 of the Law on Patents).
34. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If so, please make a reference to relevant legislation.
Tunisian legislation provides for exceptions to the exclusive rights conferred by a patent.
These are set forth in Articles 47, 48, 49 and 50 of the Law on Patents.
The exclusive rights conferred by a patent do not extend to the following acts:- Acts performed privately for non-commercial purposes;
- acts performed for experimental purposes relating to the subject-matter of the
patented invention;IP/C/W/331/Add.1
Page 15
- the extemporaneous preparation for individual cases in a pharmacy of medicines on
the basis of a medical prescription, or the acts relating to the medicines thus prepared;
- the offer, importation, stocking or use, on Tunisian territory, of the patented product
or the product obtained by a patented process, after the product has been lawfully
placed on the market of any country by the patent holder or with his explicit consent;
- acts required for the production of generic drugs; products resulting from such acts
may not be exploited for commercial purposes until the term of protection of the
patent has expired;
- the use of patented subject-matter on board aircraft, land vehicles or foreign ships
which temporarily or accidentally enter the airspace, territory or territorial waters of
the Tunisian Republic.
35. Please explain whether or not your legislatio n provides for compulsory licensing.  If so,
please explain in detail the conditions under which a compulsory licence may be granted.  In
particular, please explain how your national le gislation considers individual merits in the
authorization of such use.
Tunisian legislation provides for a compulsory patent licensing system.  Under the terms of
Article 69 of the Law on Patents, after the expiry of a period of four years counted from the date of
filing the application or three years from the granting of the patent, whichever is later, if the patented
invention is not worked, any interested party may s eek a compulsory licence at any time, if industrial
exploitation of the patented invention has not commenced or no effective and serious preparations for
its exploitation in Tunisia have been made within the relevant time-limit.
Compulsory licences may also be granted if th e subject-matter of the invention has not been
commercialized in sufficient quantities to meet the needs of the Tunisian market and the industrial or
commercial exploitation of the patented invention has been discontinued in Tunisia for longer than
three years.
To obtain a compulsory licence, an application must be filed with the competent court, along
with proof that the applicant has approached the patent holder to seek a contractual licence but has not
been able to obtain such a licence on reasonable terms and conditions and within a reasonable period
of time.
The applicant must also provide evidence that he  is in a position to work the invention in an
effective and serious manner (Article 70).
Pursuant to Articles 74, 75 and 76 of the above Law, the court examines the merits on which
use may be authorized.
36. Please explain how your legislation explicitly ensures that a proposed user has made
efforts to obtain authorization from the righ t holder on reasonable commercial terms and
conditions and that such efforts have not been successful within a reasonable period of time.  In
this context, how do you define "reasonable period of time"?  Please also explain how your
legislation ensures that the use of a compulsory  licence shall be author ized predominantly for
the supply to the domestic market of the Member authorizing such use.
According to Article 70 of Law No. 2000-84 on Patents, a person applying for a compulsory
licence must provide proof that he has previously approached the patent holder by registered letter,IP/C/W/331/Add.1
Page 16
with acknowledgement of receipt, to seek a contra ctual licence but has been unable to obtain such a
licence on reasonable terms and conditions and within a reasonable period of time.
All forms of evidence are admissible for the purpose, and the court weighing the merits of the
case has sole power to assess the evidence produced  in support of an application for a compulsory
licence.
Article 69 of the Law states that after the expiry of a period of four years counted from the
date of filing the application or three years from the granting of the patent, whichever is later, if the
patented invention is not worked, any interested party may seek a compulsory licence at any time in
any of the following cases:
- Where industrial exploitation of the patented invention has not commenced or no
effective and serious preparations for such exploitation in Tunisia have been made
within the time-limit established in Article 51;
- where the subject-matter of the invention has not been commercialized in sufficient
quantities to meet the needs of the Tunisian market;
- where the industrial or commercial exploitation of the patented invention has been
discontinued in Tunisia for longer than three years;
- the court rules on an application for compulsory licensing after hearing the parties
(Article 73 of the Law on Patents) and sets the licensing conditions, in particular the
term of the licence, its scope and the amount to be paid to the patent holder, which
must be commensurate with the scope of exploitation of the invention (Article 74 of
the Law on Patents).
Licences designed solely for the supply of the domestic market are governed by Chapter XI
on Ex Officio Licences.  Article 78 of the Law on Patent s stipulates that "the Minister of Industry may
give patent holders formal notice to work the patents in such a way as to meet the needs of the
national economy or the need for environmental conservation".
37. Please state if your legislation grants addi tional protection for innovations after the 20
years of patent protection have lapsed.
Tunisian legislation does not afford additional protection for innovations after the 20 years of
patent protection have lapsed.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Under the terms of Article 85 of the Law protecting inventions, if the patent subject-matter is
a product manufacturing process, the court is entitled to order the defendant to prove that the processused to obtain an identical product is different from the patented process.
If the defendant fails to provide such proof, however, any identical product manufactured
without the consent of the patent holder will be presumed to be obtained by the patented process if the
product is new.
G. 
LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects topographies.IP/C/W/331/Add.1
Page 17
Layout-designs of integrated circuits are protected under Law No. 2001-20 of
6 February 2001, to the extent that they are the result  of their creators' own intellectual efforts and are
not commonplace, at the time of their creation, in the integrated circuits sector (Article 3 of the Law).
Applications for layout-designs of integrated circuits must be filed with the industrial property
agency (Article 8).
40. Please explain what protection your national  legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies
including integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
In accordance with Article 36 of the TRIPS Agreement, Article 17 of Law No. 2001-20 on the
Protection of Layout-Designs of Integrated Circuits prohibits third parties "from exploiting the
reproduction of a layout-design of integrated circuits for commercial purposes or from importing to
such ends a reproduction of any product incorporating such a layout-design".
The Law also contains an entire chapter (Chapter VII) relating to border measures providing
for suspension of the free circulation of products incorporating copied layout-designs of integrated
circuits.
41. Please explain how your legislation provi des for the derogation from Article 36, as
specified in Article 37 of the TRIPS Agreement, where a person has no knowledge or reasonable
grounds to know when acquiring an integrated circuit or an article incorporating such an
integrated circuit that it contains an unlawful topography.
Pursuant to Article 37 of the TRIPS Agreement, which provides for derogation from Article
36 of the Agreement, the prohibition in Article 17 of Law No. 2001-20 on the Protection of Layout-
Designs of Integrated Circuits is not effective against a person who acquired an integrated circuit bona
fide.  That person will nevertheless be liable for appropriate indemnification if he intends to pursue the
commercial exploitation of the circuit in question.
42. Please state the term of protection granted by your legislation to topographies.
The protection of layout-designs of integrated circuits commences on the date of filing the
application or on that of the first commercial exploitation, provided that such exploitation does not
exceed two years if it pre-dates the filing of the application.
The protection of layout-designs lapses at the end of the 10th calendar year following the date
on which it commenced (Article 18).
H. PROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether your legislation grants  a defined period of time for the protection
of undisclosed information.  If so, please give the time span.
Tunisian legislation establishes a procedure for the identification and protection of
confidential information.
44. Please explain how your legislation defines "undisclosed information".
With  reference to Article 168 of the Labour Code, undisclosed information includes
information of a confidential nature and matters relating to manufacturing processes that come to a
person's knowledge in the course of his duties.IP/C/W/331/Add.1
Page 18
Likewise, Article 61 of the Penal Code specifies that such information may concern either an
invention of interest for national defence or information, research or manufacturing processes relating
to an invention of interest for defence.
45. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
Pharmaceuticals are governed by Laws Nos. 73-55 of 3 August 1973 and 85-91 of 22
November 1985.  Implementing rules and regulations have been enacted, including:
- Decree No. 90-1400 of 3 September 1990, laying down rules of good manufacturing
practice for medicines for human use and regulating quality control, packaging,
labelling, denomination and advertising;
- Decree No. 90-1401 of 3 September 1990 laying down procedures for medical or
scientific testing of medicines for human use;
- Order of the Minister of Public Health of 10 September 1996 establishing the
procedures for authorization to market medicines for human use and renewal and
assignment of such authorization.
The above texts, pursuant to the laws that gave rise to them, provide that infringement will be
subject to disciplinary sanctions and civil and criminal penalties.
The processing of applications relating to medicines is governed by procedures and provisions
that guarantee the security of information.  They are detailed as follows.
Reception of applications
  This is handled by a pharmaceutical inspector dealing directly with the person delegated by
the laboratory filing the application.  The application, countersigned by the inspector, is then returned
to the person with an official filing date.
Assessment of applications
Applications are kept under the inspector's res ponsibility.  Pharmaceutical files are sent to the
National Drug Control Laboratory, which determines whether the product is in conformity with what
is stated in its files, in the light of current pharmaceutical knowledge.  Clinical files are submitted toan expert appointed by Ministerial order for a detailed report to an expert committee.
Assessment of products similar to registered products
Data confidentiality is crucial at this stage, in order to prevent the use of data recorded in
another file.
In Tunisia, as in most countries with a reliable registration system, the procedure is based on
the following:
- Clinical data pertaining to a molecule that is the subject-matter of a second application
is not required because the molecule has already been analysed;IP/C/W/331/Add.1
Page 19
- regulations require the product to be approved for marketing in its country of origin
(Autorisation de mise sur le marché  - AMM);  where this is a country having signed
the WTO Agreements, responsibility for observance of the provisions governing
patents lies with the country of origin, if no application for a patent specific to another
country has been filed;  where the country has not adhered to the WTO Agreements, itis for Tunisia to ensure observance of intellectual property provisions;
- application for marketing approval requires submission of a pharmaceutical file,
including analysis methods which must satisfy either of the following conditions:
(a) where the product is described in an international pharmacopoeia, reference to
the latter is sufficient to validate the methods used;
(b) if such is not the case, the supplier is required to present a method that he
himself has validated without referring to the data furnished by the first holder
of the marketing authorization.
Scientific publications may be used, however, for the relevant authority regards the results
they contain as having become public knowledge at the initiative of the patent holder or of the
international scientific community.
The procedure applied by Tunisia has been in force for more than 20 years, making it possible
to avoid conflicts of interest and ensuring data confidentiality.  It has enabled the relevant authority to
acquire the status of WHO Collaborating Centre for drug registration and pharmaceutical regulation.
Article 103 of Law No. 2000-84 of 24 August 2000, which covers pharmaceutical products,
makes provision for delaying implementation of the Law according to the extension period set in therelevant WTO Agreement.
Tunisia nevertheless assures the admissibility of patent applications pursuant to that same
international Agreement.
All the aforementioned information and references to regulation are public and can be
accessed at:  www.dpm.tn.
I. ENFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Under Law No. 94-36 of 24 February 1994 on Literary and Artistic Property, copyright
infringements are punishable by a fine of 500 to 5,000 dinars.  The fine is doubled in the event of a
repeat offence, with the possibility of a term of imprisonment of one to six months.
Article 52 (new) of the draft law amending and supplementing Law No. 94-36 of
24 February 1994 increases the fine to an amount ranging between 1,000 and 50,000 dinars.  The fine
is doubled in the event of a repeat offence, with the possibility of a term of imprisonment of up to
12 months.
These penalties may be accompanied by forfeiture of the infringing goods, their destruction
and the temporary or definitive closure of the establishment where the infringement was committed.IP/C/W/331/Add.1
Page 20
As regards the authorities responsible for identifying infringements and instituting criminal
proceedings, Article 54, paragraph 1, of Law N o. 94-36 of 24 February 1994 states that "the
identification of breaches of this Law and the drawing up of records of evidence are entrusted to the
criminal investigation police authorities and officials of the Ministry of Culture duly sworn and
empowered for this purpose".
Article 54 (new) of the draft law amending and supplementing Law No. 94-36 extends these
prerogatives to customs officials, officials responsible for monitoring economic activity and municipal
regulatory officials.
The authorities may institute criminal proceedings on their own initiative.  Thus, paragraphs 2
and 3 of Article 54 (new) of the draft law amending and supplementing Law No. 94-36 of 24 February1994 stipulate that "the above-mentioned officials may seize the necessary documents and take
samples of the counterfeit products for the purposes of the investigation and to establish proof of the
infringement, against receipt.  They may also seize, as a preventive measure, any products suspected
to be counterfeit and not in accordance with current regulations".
Tunisian industrial property legislation provides for effective enforcement of industrial
property rights.  Infringement of such rights is an offence giving rise to civil and criminal liability.
There are also additional enforcement measur es in that the court may order, at the
unsuccessful party's expense, the ruling to be posted up in places of its own choosing and to bepublished, in full or in part, in newspapers of its choice, along with the destruction and forfeiture of
the counterfeit goods.
47. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.
Tunisian industrial property legislation establishes a mechanism to appeal to the relevant
courts of final administrative decisions.  The appeal process is initiated by written application
addressed or handed to the court registrar within the time-limit set by the law.
Leave to appeal to judicial bodies of final administrative decisions is provided for in
Articles 27 to 33 of the Law on the Protection of Lay out-Designs of Integrated Circuits, Articles 37 to
43 of the Law on the Protection of Trademarks, Arti cles 17 to 23 of the Law on the Protection of
Industrial Designs and in Articles 39 to 45 of the Law on Patents.
48. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensurethe protection of confidential information.
Tunisian legislation empowers the judicial authorities to order a party in proceedings, on
application by the opposing party, to produce the evidence lying in its control.
Articles 213 to 223 of the Code of Civil and Commercial Procedure give the presiding judge
authority to serve an order on either party in a case following an ex parte  application, so as to ensure
the protection of rights and interests that must not be left unprotected.
In cases of extreme urgency, judges may rule in their private homes on questions submitted to
them.  Enforcement of rulings issued in this manner is not subject to the appending of the seal of the
court or " ad hoc " registration.  These formalities are completed later.IP/C/W/331/Add.1
Page 21
Article 101 of the same Code states that "if it is necessary to obtain an expert’s report and the
parties fail to agree on the selection of the expert, the expert shall be appointed by the judge".
Tunisian legislation establishes the following procedure for the protection of confidential
information:
Article 253 of the Penal Code states that "any person who discloses the contents of a letter,
telegram or any document belonging to another party without authorization shall be liable to a prison
sentence of three months".
Article 254 of the Penal Code states that "any doctor, surgeon or other medical personnel, as
well as any pharmacist, midwife or any other person in whom secrets are vested by virtue of theirstatus or profession who reveals such secrets, except where required or permitted by law to report the
matter, shall be liable to a prison sentence of six months and a fine of 500 francs".
The general regulations governing the conduct of public-sector personnel place civil servants
under obligations of professional secrecy and discretion;  these general regulations include thefollowing:
- The General Regulations for State employees, including employees of local public
authorities and administrative public bodies;
- the General Regulations for the employees of Boards, industrial and commercial
public bodies, and companies whose capital is held directly or indirectly by the State
or by public authorities;
- the General Regulations for magistrates;- the General Regulations for customs staff;- the General Regulations for the personnel of the internal security forces.Furthermore, Article 168 of the Labour Code provides that "members of company advisory
committees and staff representatives are bound by the obligation of professional secrecy with respectto all information of a confidential nature coming into their possession while serving in that capacity,
and to all matters relating to manufacturing processes.
Any breach of this obligation shall entail the penalties laid down in Articles 138 and 254 of
the Penal Code".
Article 138 of the Penal Code states that "in addition to a fine, any manager, clerk or worker
of a factory who discloses or communicates a manufacturing secret shall be liable to a prison sentence
of two years.  Attempts to do so are also punishable".
Under Article 254, as cited above, persons in possession of documents belonging to a third
party that fail to observe secrecy are liable to six months' imprisonment and a fine.
Article 85 of Law No. 2000-84 of 24 August 2000 protecting inventions stipulates that the
courts are empowered to order the production of evidence by the opposing party, where the patentsubject-matter is the product manufacturing process.
In this case, the court has authority to order the defendant to prove that the process used to
obtain an identical product is different from the patented process.IP/C/W/331/Add.1
Page 22
Thus, in the adduction of proof to the contrary, Article 85.3 of the Law stipulates that "the
legitimate interests of the defendant in protecting his manufacturing and trade secrets shall be taken
into account."
49. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
Under Tunisian legislation, the judicial authorities are empowered to order a defendant to
desist from an infringement, by issuing interim orders, payment orders and final judgments.
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as
necessary, the court may ask the reporting judge to carry out any investigative action, such as aninquiry, visit to the scene, expert’s report, taking of pleas of forgery and any other action that will help
to establish the truth".
The court may, during the hearing and in the pr esence of the parties, set the date for the
investigative action so ordered, specifying the date and time for the appearance of the parties in thechambers of the reporting judge or at the location of the dispute or any other location.
Article 225 of that same Code states that "in any event, the court may require ex officio the
participation of a third party in the proceedings where it sees the presence of that party as essential for
a correct appreciation of the matter at issue".
If it is necessary to obtain an expert's report and the parties fail to agree on the selection of the
expert, the expert is appointed by the judge.
Interim orders
Article 201 of the Code of Civil and Commer cial Procedure (CPCC) states as follows:
"Interim orders may be made on urgent applications without prejudice to the main
proceedings."
"Interim orders on urgent applications may be made by the president of the court of first
instance or his deputy, or by the district judge, where so authorized by law" (Article 202 of the
CCCP).
"Interim orders made on urgent applications are enforceable 24 hours after being served,
except where the court has granted an extension.
The order will be enforced without security, unless the judge has ordered that security be
provided" (Article 207 of the CCCP).
Payment orders
Under the terms of Article 59 of the CCCP, any claim for the payment of a debt, where the
latter, whatever its nature, is for a specific amount and has a contractual origin, may be submitted
under the payment order procedure.
Judgments
(The Code establishes three judicial levels, i.e. first instance, appeal and cassation.)IP/C/W/331/Add.1
Page 23
The judgment will not be final if the decision can be appealed.  However, it may still be made
immediately enforceable, with or without security, depending on the circumstances of the case
(Articles 126 and 286 of the CCCP).
Final judgments
The final judgment (after appeals have been exhausted or the time-limits for lodging appeals
have expired) brings the case to a close by deciding the question forming the subject-matter of the
proceedings.
The court may issue an interim order ordering a defendant to desist from an infringement.
Thus, measures dictated by urgency or difficulties relating to the enforcement of a judgment
delivered or a writ of execution may be taken by the president of the competent court or his deputy
sitting in chambers, in accordance with Articles 201 and 210 of the CCCP.
Law No. 2000-84 on Patents (and Article 87 in particular) accordingly provides that "where
an action for infringement of a patented invention is brought before the court, the presiding judge may
issue an interim order prohibiting, provisionally and on pain of a fine, the continuation of the allegedly
infringing acts or make the continuation of such acts subject to the provision of security intended to
ensure the indemnification of the patent holder".  This is also provided for in the Law on the
Protection of Trademarks (in particular Article 49).
50. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder of adequate damages to compensate the injury he suffered.
Under Articles 82 and 83 of the Code of Ob ligations and Contracts (COC), anyone who
knowingly or deliberately causes material or moral damage to others must make good the damage,
where it is established that his action was the direct cause.
Article 82 of the Law on Patents, Article 34 of the Law on the Protection of Layout-Designs
of Integrated Circuits, Article 24 of the Law on th e Protection of Industrial Designs and Article 44 of
the Law on the Protection of Trademarks likewise provide for the civil liability of the infringer.
51. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
As a general rule, ordinary law (i.e. the Code of Obligations and Contracts) provides for
compensation for injury suffered, including lawyers' fees, for example.
Moreover, according to Article 191 of the Code of Penal Procedure, "the costs of the
proceedings shall be ordered against the person convicted".
52. Please explain if and how judges have the authority to order that infringing goods are
placed outside channels of commerce or destroyed.
Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property empowers
the competent court to order, ex officio or on request, the confiscation or destruction of fraudulent
copies and the temporary or definitive closure of the establishment in which the infringement has beenascertained.
As regards industrial property, in addition to seizing the infringing goods the court may order
that they be placed outside the channels of commerce, destroyed or confiscated.  This is provided for
in Article 26 of the Law of 6 February 2001 on the Protection of Industrial Designs, Article 36 of theIP/C/W/331/Add.1
Page 24
Law of 6 February 2001 on the Protection of Layout-D esigns of Integrated Circuits, and Article 55 of
the Law of 17 April 2001 on the Protection of Trademarks.
53. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
It is for the defendant to bring action for compensation for injury suffered as a result of
unreasonable and unjustified claims, and ordinary law provides for such action in the courts.
Article 50-4 of the draft law amendi ng and supplementing Law No. 94-36 of
24 February 1994 states that "subject to completion of all customs formalities, the suspension of the
release of the products shall be revoked automatically if the author, holder of related rights or hisrepresentative has failed to provide the customs services, within 10 days from notification of the
suspension of the release of the products, with proof of the following: […] Lodgement of a security
[…] the amount of said security shall be set by the competent court".  The posting of security
sufficient to cover his liability to the persons concerned in the event of it being subsequently
established that the products in question do not infrin ge copyright or related rights would serve at least
partly to guarantee any indemnification of the defendant decided by the courts under ordinary law and
a priori discourage unreasonable and unjustified claims.
As regards industrial property, Articles 86 and 87 of the Law on Patents, Article 38 of the
Law on the Protection of Layout-Designs of Integrated Circuits, Article 28 of the Law on theProtection of Industrial Designs and Article 50 of the Law on the Protection of Trademarks give the
courts authority to indemnify the defendant in the event of the plaintiff abusing enforcement
procedures.
The above Articles specify that where an action for infringement is brought before a court, the
judge may, provisionally and on pain of a fine, prohibit the continuation of the allegedly infringing
acts or make the continuation of such acts subject to the provision of security designed to ensure the
indemnification of any damage suffered by the defendant if the action for infringement is
subsequently deemed to be unfounded.
54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
In conformity with the TRIPS Agreement (in particular Article 50), which empowers the
judicial authorities to order prompt and effective provisional measures, generic legislation (ordinary
law) provides, as mentioned above, that interim orders and orders on ex parte  applications may be
made for the adoption of appropriate provisional measures.
In order to prevent infringements of intellectual property, Articles 213 to 223 of the Code of
Civil and Commercial Procedure give the presiding judge authority to serve an order on either party in
a case following an ex parte  application, so as to ensure the protection of rights and interests that must
not be left unprotected.
In cases of extreme urgency, judges may rule in their private homes on questions submitted to
them.  Enforcement of rulings issued in this manner is not subject to the appending of the seal of the
court or " ad hoc " registration.  These formalities are completed later.
Orders on ex parte  applications are exempted from the registration procedure and are enforced
without delay by bailiffs.  A request for the withdrawal of such an order does not suspend
enforcement.
To preserve relevant evidence, Article 86 of the Code of Civil and Commercial Procedure
provides that "if it sees this as necessary, the court may ask the reporting judge to carry out anyIP/C/W/331/Add.1
Page 25
investigative action, such as an inquiry, visit to the scene, expert’s report, taking of pleas of forgery
and any other action that will help to establish the truth".  The judicial authorities may adopt
provisional measures inaudita altera parte  if need be.  Article 207 of the Code thus specifies that "in
cases of extreme urgency the court may order immedi ate enforcement before registration.  It may also
order enforcement without prior service".  The judicial authorities may require the plaintiff to provideany reasonably available evidence.
Article 12 of the Code further stipulates that "the court is under no obligation to gather,
supplement or produce evidence in support of the parties' claims".  It is for the plaintiff to produce the
evidence.
The judicial authorities may order prior posting of security to protect the defendant from any
abuse.  Paragraph 5 of Article 54-1 of the draf t law amending and supplementing Law No. 94-36 of
24 February 1994 on Literary and Artistic Property thus provides that "under an order on an ex parte
application, the president of the competent court may require prior posting of security by the
applicant".
Where provisional measures are adopted inaudita altera parte , the affected parties will be
duly informed.  Such measures may be revoked if a decision on the merits of the case is not handed
down within a reasonable period of time.  Ar ticle 54 (new) of the draft law amending and
supplementing Law No. 94-36 of 24 February 1994 stipulates that "the record shall include the date
and place of the identification or confiscation measure and of the notice given to the infringer or hisrepresentative in person of the identified subject-m atter of the infringement or of the confiscation
measure, or, in the event of his absence, a copy of the record shall be sent to him by registered mail.
The records of the identification of the infringement and the confiscation measure shall be
sent within seven days to the Public Prosecutor,  who shall forward the documents to the competent
court for a ruling on the approval or revocation of the confiscation measure within a maximum period
of one month from the date on which the confiscation measure was carried out.  If the court does not
rule on the confiscation within the time-limit specified, the confiscation measure shall be revoked
automatically".
Where it is subsequently found that there has been no infringement or threat of infringement,
ordinary law generally provides for compensation for any material and moral damage suffered andproceedings may be instituted to seek reparation for injury resulting from unreasonable and unjustified
action.
In an action for infringement of a patented invention, the court may, provisionally and on pain
of a fine, prohibit the continuation of the allegedly infringing acts or make the continuation of suchacts subject to the provision of security designed to ensure the indemnification of the patent holder
(Article 87 of the Law on Patents).  This is also provided for in the Law on the Protection of
Trademarks (Article 49).
Application for prohibition or the posting of security, as mentioned above, is admissible only
if the action on the merits appears to be serious and is brought within a maximum of 30 days of the
industrial property right holder becoming aware of the facts on which it is based.
The court may also make the prohibition subjec t to the posting by the applicant of security
designed to ensure the indemnification of any damage suffered by the defendant if the action forinfringement is subsequently deemed to be unfounded.
55. Please identify the competent authorities in your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.IP/C/W/331/Add.1
Page 26
Under Tunisian industrial property legislation governing border measures, right holders may
apply to the customs authorities for suspension of th e release of counterfeit goods (Article 39 of the
Law on the Protection of Layout-Designs of Integr ated Circuits, Article 91 of the Law on Patents,
Article 56 of the Law on the Protection of Trademar ks and Article 31 of the Law on the Protection of
Industrial Designs).
The Order of the Ministry of Finance of 3 December 2001 establishing the form in which to
apply in writing for the suspension of import clearance for products bearing a counterfeit trademark
and the procedures for lodging the application with the customs services specifies that the application
must be lodged with the Directorate-General of Customs in Tunis.
The measure suspending the release of the products is revoked ipso jure , however, where the
applicant fails to provide the customs services, within 10 working days of being notified of the
suspension, with proof that he has initiated civil or criminal proceedings;  that precautionary measures
have been ordered by the president of the competent court;  and that security sufficient to cover the
applicant's liability in respect of the persons concerned has been posted.
56. Please indicate whether or not procedures are available to suspend the exporting of
counterfeit goods.
None of the Tunisian industrial property provisions relating to border measures contains
procedures for suspending the export of counterfeit goods.
57. Please indicate whether or not your legislation provides for a de minimis  imports
exception.
Tunisian industrial property legislation, in particular Article 99 of the Law on Patents, Article
47 of the Law on the Protection of Layout-Designs of  Integrated Circuits, Article 39 of the Law on the
Protection of Industrial Designs and Article 64 of th e Law on the Protection of Trademarks, expressly
specifies that the provisions relating to border measures do not apply to goods of a non-commercial
nature in travellers' personal luggage, within the quantitative limits set by the laws and regulations in
force.
58. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
In addition to the payment of civil damages,  Article 52 of Law No. 94-36 of 24 February 1994
on Artistic and Literary Property provides that copyri ght infringements are punishable by a fine of 500
to 5,000 dinars.  The fine is doubled in the event of a repeat offence, with the possibility of a term ofimprisonment of one to six months.
Article 52 (new) of the draft law amending and supplementing Law No. 94-36 of
24 February 1994 raises the fine to an amount ranging between 1,000 and 50,000 dinars.  The fine is
doubled in the event of a repeat offence, with the possibility of a term of imprisonment of one to12 months.  These penalties may be accompanied by forfeiture of the infringing goods, their
destruction and the temporary or definitive closure of the establishment where the infringement was
committed.
As regards the authorities responsible for identifying infringements and instituting criminal
proceedings, Article 54, paragraph 1, of Law N o. 94-36 of 24 February 1994 specifies that "the
identification of breaches of this Law and the drawing up of records of evidence are entrusted to the
criminal investigation police authorities and officials of the Ministry of Culture duly sworn and
empowered for this purpose".IP/C/W/331/Add.1
Page 27
Article 54 (new) of the draft law amending and supplementing Law No. 94-36 extends these
prerogatives to customs officials, officials responsible for monitoring economic activity and municipal
regulatory officials.
The authorities may institute criminal proceedings on their own initiative.  Thus, paragraphs 2
and 3 of Article 54 (new) of the draft law amending and supplementing Law No. 94-36 of
24 February 1994 stipulate that "the above-mentioned officials may seize the necessary documents
and take samples of the counterfeit products for the purposes of the investigation and to establish
proof of the infringement, against receipt.  They may also seize, as a preventive measure, any products
suspected to be counterfeit and not in accordance with current regulations".
Tunisian legislation provides for civil and criminal proceedings and penalties in the event of
infringement of industrial property rights.
Counterfeiting is punishable by a fine of 5,000 to 50,000 dinars (Article 51 of Law
No. 2001-36 of 17 April 2001 on the Protection of Trademarks, Article 24 of Law No. 2001-21 of
6 February 2001 on the Protection of Industrial Designs and Article 83 of Law No. 2000-84 of
24 August 2000 on Patents);  or by a fine of 1,000 to 50,000 dinars for infringements relating to
layout-designs of integrated circuits (Article 34 of Law No. 2001-20 of 6 February 2001 on the
Protection of Layout-Designs of Integrated Circu its), in addition to the fine of 500 to 2,000 dinars
payable by anyone who causes to appear on his business documents, advertising or products words
that give reason to believe that a layout-design has been registered
It should also be noted that in all these cases of infringement repeat offenders will be liable to
imprisonment for one to six months and the doubling of the fine.
In the event of conviction, the court may order the infringing products to be destroyed or
placed outside the channels of commerce and confiscated (Article 36 of the Law on the Protection of
Layout-Designs of Integrated Circuits, Article 26  of the Law on the Protection of Industrial Designs
and Article 55 of the Law on the Protection of Trademarks).
The seizure of counterfeit products is also provided for in Article 86 of the Law on Patents,
Article 38 of the Law on the Protection of Layout-Designs of Integrated Circuits, Article 28 of the
Law on the Protection of Industrial Designs and Article 50 of the Law on the Protection ofTrademarks.
UNITED STATES
A. 
GENERAL
1. Please describe, in relation to each form of intellectual property covered by the TRIPS
Agreement, including plant variety protection, the manner in which national treatment and
most favoured nation treatment are provided to nationals of other WTO Members.
Article 101 of the Law on Patents, Articles 17 and 18 of the Law on the Protection of
Trademarks, Article 5 of the Law on the Protection of Industrial Designs and Article 6 the Law on the
Protection of Layout-Designs of Integrated Circuits stipulate that foreigners as well as Tunisian
nationals may request protection for all aspects of industrial property, provided that the principle of
reciprocity applies.
This is also stipulated in Article 15, paragraph 2, of Law No. 99-42 of 10 May 1999 on Seeds,
Seedlings and Plant Varieties.IP/C/W/331/Add.1
Page 28
Article 57 of Law No. 94-36 of 24 February 1994 on  Literary and Artistic Property specifies
that foreign works "may enjoy protection on condition that the country concerned affords equivalent
protection to works of Tunisian nationals".
The last paragraph of Article 56 (new) of the draft law amending and supplementing Law
No. 94-36 of 24 February 1994 further provides that "the provisions of this Law relating to copyright
shall apply to works eligible for protection under  an international convention to which Tunisia is
party".
Likewise, the last paragraph of Article 57 (new) of the draft law amending and supplementing
Law No. 94-36 of 24 February 1994 stipulates that "the provisions of this Law shall also apply to
performances, phonograms or videograms and broadcasts protected under an international conventionto which Tunisia is party".
B. 
COPYRIGHT AND RELATED RIGHTS
2. Please explain whether and how the copyright law of Tunisia complies with Article 9 of
the TRIPS Agreement requiring that Members co mply with all Articles 1 through 21 of the
Berne Convention (1971), except Article 6bis, since Members do not have rights or obligations
relating to the latter Article under the TRIPS Agreement.
Tunisia is one of the 10 founding countries of the Berne Convention of 1886 and is also a
Member of the WTO.  Article 9 of the TRIPS Agreement provides that "Members shall comply withArticles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.
However, Members shall not have rights or obligations under this Agreement in respect of the
rights conferred under Article 6 bis of that Convention or of the rights derived therefrom".
Article 6 bis of the Berne Convention deals with authors' moral rights (right to claim
authorship of a work;  right to object to certain modifications of, and other derogatory action in
relation to, the work;  term of protection;  and means of redress for safeguarding these rights).  Article
2.2 of the TRIPS Agreement provides that "[n]othing in Parts I to IV of this Agreement shall derogate
from existing obligations that Members may have to  each other under the Paris Convention, the Berne
Convention, the Rome Convention and the Treaty on In tellectual Property in Respect of Integrated
Circuits".
Thus, a WTO Member that is not party to the Berne Convention is not required to comply
with the provisions of the Berne Convention relatin g to moral rights, whereas a WTO Member that is
also party to the Berne Convention (which is the case  of Tunisia) is under the obligation to apply those
provisions.
3. Please explain how the copyright law of Tunisia protects computer programs as literary
works and complications of data as required by Article 10 of the TRIPS Agreement.
Protection of computer programs
Article 1 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property includes
"software" (i.e. computer programs, as established during the Law's preparatory stages) among the
works covered by copyright.  All general provisions relating to copyright, the rights it confers and the
obligations it entails, the procedures for identifyin g infringements and the ensuing penalties thus apply
to computer programs to the extent that they ar e not contrary to the provisions of Chapter VII on
Software.  The following provisions are cited as examples:
(1) Copyright covers computer programs in both source and object code.IP/C/W/331/Add.1
Page 29
The presumed author of the computer program is the person under whose name the
program has been released.
(2) Programs written by employees in the course of their duties belong to the employer.
The Law on Scientific Research (Law No. 96-6 of 31 January 1996, as amended by
Law No. 2000-68 of 17 July 2000 and its implementing rules and regulations)
provides that government employees are entitled to various advantages and incentives
in respect of the exploitation of the results of their research.
(3) Commissioned computer programs and related documentation are the property of the
producer.
(4)  The author of a computer program has an exclusive right to carry out, authorize or
prohibit certain acts relating to his work (reproduction, communication to the public,
broadcasting and adaptation).
(5) The author of a computer program enjoys the economic and moral rights deriving
from copyright.
(6) Authorization granted by the author must be in the form of a written contract
containing a number of mandatory clauses.
(7) Economic rights may be assigned in part or in full.  Assignment of works not yet
created is deemed null and void.
(8) Computer programs may be adapted only within the limits of the rights assigned by
the author.
(9) Unless expressly so authorized, the user of a legitimately acquired program may not
produce any copies thereof other than a backup copy.
(10) The term of protection of com puter programs under Law No. 94-36 of
24 February 1994 is 25 years.  In accordance with the TRIPS Agreement, ratified byLaw No. 95-6 of 23 January 1995, the dr aft law amending Law No. 94-36 has
extended the term to 50 years.
Protection of data compilations (or databases)
Data compilations (or databases) are implicitly protected under Articles 1 and 6 of Law
No. 94-36 of 24 February 1994.  Article 6.2 of the dr aft law amending this Law expressly provides
that authors of works such as encyclopaedias or anthologies, folklore collections or databases which,
by reason of the selection or arrangement of their contents, constitute intellectual creations are
protected without prejudice to the rights of the authors of the original works.
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs
and cinematographic works be available.  Please  cite to the corresponding provision of the
copyright law of Tunisia.
This matter is governed by Law No. 94-36 of 24 February 1994 on Literary and Artistic
Property, which does not expressly refer to rental rights but does not exclude them.IP/C/W/331/Add.1
Page 30
Under Tunisian general legislation, "rental rights form part of the rights of the holder of a title
of property ownership conferring an exclusive right to use, enjoy and dispose of that property"
(Article 17 of the Code of Property Rights).  Co nsequently, the "owner" of a computer program or a
cinematographic work is entitled to rent it.  Such a provision has been expressly included in the
special law on copyright and related rights.  Thus, Article 9-1 of the draft law amending andsupplementing Law No. 94-36 of 24 February 1994, which applies to all protected works, grants the
author an exclusive right to exploit his work or to authorize its exploitation by third parties, by way of
any of the following acts:
(a) Reproduction of the work;(b) communication of the work to the public;(c) any form of exploitation of the work in general on a physical medium, including rental
of the original and copies thereof.
5. Please state the length and terms of protection the copyright law of Tunisia provides for
a work other than a photographic work or a work of applied art and cite to the relevant
provision of law.
Article 18 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property protects
copyright for the author's lifetime and for 50 years counted from 1 January of the year following theauthor's death or of the date determined in a finding of presumed death or disappearance.
In the case of anonymous works, the term of protection is counted from the date on which the
work was made available to the public.  In the case of photographic works and computer programs,
protection subsists for 25 years counted from the year in which the work was created.
The draft law amending and supplementing Law No. 94-36 of 24 February 1994 has unified
the term of copyright protection, extending it to 50 years.  Article 18 (new) of the draft law amending
and supplementing Law No. 94-36 of 24 February 1994 provides that "protection of authors' economic
rights shall subsist for the lifetime of the author and for 50 years counted from 1 January of the year
following the author's death or of the date determin ed in a finding of presumed death in the event of
absence or disappearance".
In the case of works of joint authorship, protection subsists for 50 years counted from
1 January of the year following the death of the last  surviving author or of the date determined in a
finding of presumed death in the event of absence or disappearance.
In the case of anonymous or pseudonymous works, protection subsists for 50 years counted
from 1 January of the year following that in wh ich the work was first published.  Copyright is
exercised by the publisher or distributor of the work.  Where a pseudonym does not conceal the
author's identity from the public or where the aut hor of an anonymous or pseudonymous work reveals
his true identity, the term of protection is that provided for in paragraph 2 of this Article.
In the case of works published after the author's death, protection subsists for 50 years
counted from 1 January of the year following that in which the work was first published.  Copyright is
exercised successively by the executor, heirs, spous e or any other heirs to whom the rights of the
author accrue.
 In the case of photographic works, Article 19 (new) stipulates that protection subsists for
50 years counted from the date on which the work was created.  The same term is provided for
software or computer programs (new Article 47).  In the case of cinematographic or audiovisual
works, the term of protection is also 50 years counted from the date of the first lawful publicIP/C/W/331/Add.1
Page 31
performance of the work.  Where performance has not taken place, the term of protection is 50 years
counted from the date on which the first reference copy was made (Article 42-1 of the draft law
amending and supplementing Law No. 94-36 of 24 February 1994).
6. Please describe the protection the copyright law of Tunisia provides for performers, and
the term of the protection.
Performers are protected under Tunisian general legislation and the Uruguay Round
Agreements, ratified by Law No. 95-6 of 23 January 1995.
The draft law amending and supplementing Law No. 94-36 of 24 February 1994 on Literary
and Artistic Property contains specific provisions for the protection of performers.  Under Article 47-3of the draft law, performers thus enjoy the following moral and economic rights:
Moral rights
- A right, in respect of their sound or audiovisual performances, whether live or fixed
on phonograms or videograms, to be identified as performers, except where the
manner of use of the performance precludes such identification;
- a right to oppose any distortion, mutilation or other modification of such performances
that might be prejudicial to their reputation.
These rights are inalienable and imprescriptible, and may not be renounced.
Economic rights
- A right of broadcasting or communication to the public of unfixed performances,
except where the performances is already a broadcast performance;
- a right of fixation of an unfixed performance;- a right of direct or indirect reproduction of their performances, fixed on phonograms
or videograms, in any manner or form whatsoever;
- a right of distribution to the public of the original and copies of the fixation of their
performances on phonograms or videograms, by means of sale or any other transfer of
ownership;
- a right of commercial rental to the public of the original and copies of the fixation of
their performances on phonograms or videograms, even after these have been
distributed by the performers themselves or with their authorization;
- a right to make their performances fixed on phonograms or videograms available to
the public by wire or wireless means, in such a way that members of the public may
access the work from a place and at a time individually chosen by them.
These are exclusive rights of performers to auth orize the use, in full or in part, of their
performances.
The term of protection of performers' economic rights is 50 years counted from 1 January of
the year following that in which the performance was fixed on a phonogram or videogram.IP/C/W/331/Add.1
Page 32
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
Article 14.2 requires that producers of phonograms are to have the right to authorize or
prohibit the commercial rental to the public of originals or copies of their phonograms.  Please
describe how the copyright law of Tunisia implements these obligations and indicate the term ofprotection.
In addition to the rental rights which are provided under general legislation for computer
programs, as mentioned above, and which also apply to producers of phonograms, Article 47-5 of the
draft law amending and supplementing Law No. 94-36 of 24 February 1994 confers the following
rights on producers of phonograms or videograms:
- A right of direct or indirect reproduction of their phonograms or videograms, in any
manner or form whatsoever;
- a right of distribution to the public of the originals and copies of their phonograms or
videograms, by means of sale or any other transfer of ownership;
- a right of commercial rental to the public of the originals and copies of their
phonograms or videograms, even after these have been distributed by the producers
themselves or with their authorization;
- a right to make their phonograms or videograms available to the public by wire or
wireless means, in such a way that members of the public may access the work from a
place and at a time individually chosen by them.
These are exclusive rights of producers of phonograms or videograms to authorize the use, in
full or in part, of their phonograms or videograms.
The term of protection of the rights of producers of phonograms or videograms is 50 years
counted from the year following that in which the phonogram or videogram was released or, failing
such release, 50 years counted from 1 January of th e year following that in which the fixation of the
phonogram or videogram took place.
C. 
TRADEMARKS
8. Please describe the subject matter that can comprise a trademark under the trademark
law of Tunisia.
According to Article 2 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks,
the following may be registered as trademarks:
- Denominations of all kinds such as words;  combinations of words;  family and
geographical names;  pseudonyms;  letters;  numbers;  and acronyms;
- figurative signs such as drawings;  reliefs;  shapes, in particular that of the product or
its packaging or those characterizing services;  arrangements;  and combinations of
colours or hues;
- audio signals such as sounds and musical phrases.
9. Please describe the procedure that must be followed to register a trademark in Tunisia,
citing the relevant provisions of the law, and de scribe the rights that the owner of a registered
mark can exercise.IP/C/W/331/Add.1
Page 33
Article 7 of the Law on the Protection of Trad emarks stipulates that applications for
trademark registration must be filed with the industrial property agency.  Every application must be
accompanied by a file containing a number of documents and relevant data (Article 1 of Decree
No. 2001-1603 of 11 July 2001).
Once all the requisite items have been delivered, the application is approved, validated and
published in the agency's official bulletin within a maximum period of 12 months counted from the
date of filing (Article 9 of the Law).
Any interested party may challenge an application for trademark registration within two
months of the date of its publication, whereupon a reconciliation procedure is initiated.
If no objection is raised, the mark will be registered and published within a maximum period
of 12 months following the registration date (Article 13).
Pursuant to Articles 6, 21, 22 and 23 of the Law, trademark registration confers on its holder a
right of ownership in that trademark.  Third parties may thus be prohibited from accomplishing the
following acts:
- Reproducing, using or affixing a protected mark;
- removing or modifying a protected mark;
- imitating a mark or using an imitated mark, for products or services identical or
similar to those covered in the registration.
10. Please provide the length and terms of protection that the trademark law of Tunisia
provides for a trademark.
According to Article 6 of the Law on the Protection of Trademarks, trademark registration
takes effect from the date of filing the application and is valid for a period of 10 years, renewable
indefinitely.
D. GEOGRAPHICAL INDICATIONS
11. Please describe in detail how the laws of Tunisia provide for the recognition and
protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing
to the relevant provisions of law or regulation, and provide examples of geographical indications
so protected.
Pursuant to Article 22.2 of the TRIPS Agreement, Article 4 of Law No. 2001-36 of
17 April 2001 on the Protection of Trademarks stipulates that any sign liable to mislead the public as
to the quality or geographical origin of a product or service may not be adopted as a mark or an
element of a mark.
Article 5 of the Law also provides that any sign that infringes prior rights and in particular a
protected appellation of origin may not be adopted as a mark.
Article 20 of Law No. 99-57 of 28 June 1999 on registered appellations of origin thus
establishes that the industrial property authorities may not grant any trademark for a registered
appellation of origin or an indication of source if the trademark application is filed after the territory
covered by the registered appellation of origin or the indication of source has been defined and made
public.IP/C/W/331/Add.1
Page 34
12. Please describe in detail the manner in which the higher level of protection required for
wines and spirits under Article 23.2 of the TRIPS Agreement is implemented, citing to the
relevant provisions of law or regulation, and provide examples of geographical indications for
such products.
Law No. 99-57 of 17 April 1999 on registered appellations of origin and indications of source
of agricultural products and Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks do
not expressly provide for additional protection for wines and spirits.
Article 5 of the Law on the Protection of Trad emarks does specify, however, that "any sign
that infringes prior rights and in particular a protected appellation of origin may not be adopted as amark".
E. 
INDUSTRIAL DESIGNS
13. Please describe the procedure that must be followed to obtain protection for industrial
designs, citing to the provisions of the law of Tunisia, and describe the nature of the protectionprovided.
Under Article 9 of Law No. 2001-21 of 6 Febr uary 2001 on the Protection of Industrial
Designs, applications for industrial designs must be filed with the industrial property agency.
All duly filed industrial designs are entered in the national register of industrial designs and
published in the official bulletin of the industrial property agency within a period not exceeding nine
months from the date of filing.
Article 15 of the Law provides that applicants may request the publication of their industrial
designs to be postponed for a period of 12 months from the date of filing.
Pursuant to Article 8 of the Law, ownership in an industrial design ultimately belongs to the
person who created the design.  In other words, filing is no more than a presumption of ownership
which may be disproved.
14. Please describe the procedure that must be followed to obtain protection for textile
designs and cite to the relevant provisions of law or regulation.
There are no specific provisions for the protection of textile designs.  On the other hand,
Tunisian legislation provides for postponement of  the publication of industrial designs filed, including
those of the textile industry, for a period of 12 months  from the date of filing.  It also provides for
collective filing, which applies to textile designs.
F. 
PATENTS
15. Please describe in detail the way in which the patent law of Tunisia implements
Article 27 of the TRIPS Agreement, indicating  any exceptions provided for, and including
details regarding the protection for micro-organisms and non-biological and microbiological
processes and plant varieties.  Please cite to the relevant provisions of the law.
Articles 1, 2 and 3 of Law N o. 2000-84 of 24 August 2000 on Patents are in conformity with
Article 27 of the TRIPS Agreement.
Article 1 states that any invention of a produc t or manufacturing process may be protected by
a document referred to as a "patent", which is delivered by the industrial property agency.IP/C/W/331/Add.1
Page 35
According to Article 2, methods for therapeutic or surgical treatment of the human or animal
body and diagnostic methods practised on the human or animal body are not considered inventions.
Under the terms of Article 3, patents may be not delivered for plant varieties, animal breeds or
essentially biological processes for the breeding of plants or animals, with the exception of medical
biological processes, including micro-organisms and the products of such processes, which are
patentable.
Inventions the publication or application of which would be contrary to morality, ordre
public , public health or environmental protection are likewise excluded from patentability.
16. Please describe in detail the rights provided patent holders under the patent law of
Tunisia and cite to the relevant provisions of law.
Article 46 of Law No. 2000-84 of 24 August 2000 on Patents provides that a patent confers an
exclusive right of exploitation on its holder or his su ccessors in title, meaning that the patent holder
may prohibit third parties from performing the following acts:
- Making, offering, placing on the market or using a product which is the subject-matter
of the patent, or importing or stocking a product for such purposes;
- using the manufacturing process that is the subject-matter of the patent;
- offering, placing on the market or using the product obtained directly by a process
which is the subject-matter of the patent, or importing or stocking a product for such
purposes.
17. Please describe in detail any provisions in the laws of Tunisia permitting unauthorized
use of a patent, citing to the relevant provisions of law, and describe in detail the conditions
under which such use can occur.
Article 47 of the Law on Patents stipulates that the rights conferred by a patent do not extend
to the following acts:
- Acts performed privately for non-commercial purposes;
- acts performed for experimental purposes relating to the subject-matter of the
patented invention;
- the extemporaneous preparation for individual cases in a pharmacy of medicines on
the basis of a medical prescription, or the acts relating to the medicines thus prepared;
- the offer, importation, stocking or use, on Tunisian territory, of the patented product
or the product obtained by a patented process, after the product has been lawfully
placed on the market of any country by the patent holder or with his explicit consent;
- acts required for the production of generic drugs; products resulting from such acts
may not be exploited for commercial purposes until the term of protection of thepatent has expired;IP/C/W/331/Add.1
Page 36
- the use of patented subject-matter on board aircraft, land vehicles or foreign ships
which temporarily or accidentally enter the airspace, territory or territorial waters of
the Tunisian Republic.
18. What term of protection does the patent law of Tunisia provide for patents?  Please
describe any provisions for extension of the term of protection and cite to the relevant provisions
of the law.
Article 36 of the Law on Patents specifies that patent protection subsists for 20 years from the
date of filing the application.
Tunisian legislation does not provide for any extension of the term of patent protection.
G. LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
19. Please describe in detail the protection for layout-designs of integrated circuits provided
under the laws of Tunisia, including the term of pr otection, and cite to the relevant provisions of
law.
Law No. 2001-20 of 6 February 2001 provides for the filing of layout-designs of integrated
circuits with the industrial property agency.
Protection is afforded if a layout-design is the result of its creator's own intellectual effort and
is not commonplace, at the time of its creation, in the integrated circuits sector (Article 3 of the Law).
The filing of a layout-design confers an exclusive right of exploitation on the owner, who may
prohibit third parties from reproducing, exploiting or importing the layout-design without due
authorization (Article 17 of the Law).
The protection of a layout-design of integrated circuits commences on the date of filing or on
the date of the first commercial exploitation, where exploitation precedes the date of filing.
Under Article 18 of the Law, the term of protection of a layout-design is 10 years from the
date of filing or that of the first commercial exploitation, where exploitation precedes the date of
filing.
H. PROTECTION OF UNDISCLOSED INFORMATION
20. Please describe in detail how the laws of Tunisia provide for the protection of
undisclosed information as required by Article 39.2 of the TRIPS Agreement and provide
citations to the relevant provisions of law.
Protection is afforded under Article 168 of th e Labour Code, which states that members of
company advisory committees and staff representatives are bound by the obligation of professional
secrecy with respect to all information of a confid ential nature coming into their possession while
serving in that capacity, and to all matters relatin g to manufacturing processes.  Any breach of this
obligation entails the penalties laid down in Articles 138 and 254 of the Penal Code.
Article 138 of the Penal Code states that, in addi tion to a fine, any manager, clerk or worker of
a factory who discloses or communicates a manufacturing secret is liable to a prison sentence of two
years.  Attempts to do so are also punishable.
Article 61 ter of the Penal Code stipulates that "any Tunisian or any foreigner who, without
prior authorization from the competent authority, discloses or communicates to a party acting onIP/C/W/331/Add.1
Page 37
behalf of a foreign power or enterprise either an invention of interest for national defence or
information, research or manufacturing processes relating to an invention of interest for defence shall
be guilty of a breach of State security".
21. Please describe in detail the manner in which protection is provided test data regarding
pharmaceutical and agricultural chemical prod ucts submitted to the government in order to
obtain marketing approval in Tunisia and cite to the relevant provisions of law.
Pharmaceuticals are governed by Laws Nos. 73-55 of 3 August 1973 and 85-91 of
22 November 1985.  Implementing rules and regulations have been enacted, including:
- Decree No. 90-1400 of 3 September 1990, laying down rules of good manufacturing
practice for medicines for human use and regulating quality control, packaging,
labelling, denomination and advertising;
- Decree No. 90-1401 of 3 September 1990 laying down procedures for medical or
scientific testing of medicines for human use;
- Order of the Minister of Public Health of 10 September 1996 establishing the
procedures for authorization to market medicines for human use and renewal and
assignment of such authorization.
The above texts, pursuant to the laws that gave rise to them, provide that infringement will be
subject to disciplinary sanctions and civil and criminal penalties.
The processing of applications relating to medicines is governed by procedures and provisions
that guarantee the security of information.  They are detailed as follows.
Reception of applications
This is handled by a pharmaceutical inspector dealing directly with the person delegated by
the laboratory filing the application.  The application, countersigned by the inspector, is then returned
to the person with an official filing date.
Assessment of applications
Applications are kept under the inspector's res ponsibility.  Pharmaceutical files are sent to the
National Drug Control Laboratory, which determines whether the product is in conformity with what
is stated in its file, in the light of current pharmaceutical knowledge.  Clinical files are submitted to anexpert appointed by Ministerial order for a detailed report to an expert committee.
Assessment of products similar to registered products
Data confidentiality is crucial at this stage, in order to prevent the use of data recorded in
another file.
In Tunisia, as in most countries with a reliable registration system, the procedure is based on
the following:
- Clinical data pertaining to a molecule that is the subject-matter of a second application
is not required because the molecule has already been analysed;IP/C/W/331/Add.1
Page 38
- regulations require the product to be approved for marketing in its country of origin
(Autorisation de mise sur le marché  - AMM);  where this is a country having signed
the WTO Agreements, responsibility for observance of the provisions governing
patents lies with the country of origin, if no application for a patent specific to another
country has been filed;  where the country has not adhered to the WTO Agreements, itis for Tunisia to ensure observance of intellectual property provisions;
- application for marketing approval requires submission of a pharmaceutical file,
including analysis methods which must satisfy either of the following conditions:
(a) where the product is described in an international pharmacopoeia, reference to
the latter is sufficient to validate the methods used;
(b) if such is not the case, the supplier is required to present a method that he
himself has validated without referring to the data furnished by the first holder
of the marketing authorization.
Scientific publications may be used, however, for the relevant authority regards the results
they contain as having become public knowledge at the initiative of the patent holder or of the
international scientific community.
The procedure applied by Tunisia has been in force for more than 20 years, making it possible
to avoid conflicts of interest and ensuring data confidentiality.  It has enabled the relevant authority to
acquire the status of WHO Collaborating Centre for drug registration and pharmaceutical regulation.
All the aforementioned information and references relating to regulations are public and can
be accessed at:  www.dpm.tn.
22. Are other applicants for ma rketing approval for their own versions of a previously
approved pharmaceutical or agricultural chemical products permitted to rely on data submitted
by the earlier applicant?  If so, how long a period of exclusivity is given the earlier applicant
before such reliance becomes possible?
Application files differ according to whether the product is a first product or a generic
product.  The entire body of clinical data specified by law is required only in the case of a first
product.
The data is evaluated by experts who are subject to a legal obligation of professional secrecy.
The authorities themselves are also bound by secrecy, and no application file may be communicatedor used on the submission of a second application.
Generic products may be exempted from the requirement to submit clinical and
pharmacological-toxicological files if the authorities deem that a sufficient period has passed, and the
patent has expired.  If the authorities deem such files to be necessary, the laboratory is required torecompile all the data without referring to the documentation for the first product.
It should be noted, however, that scientific data published in periodicals can generally be used
for filing first or second product applications, since the data has become public knowledge at the
initiative of the owner of the first product.IP/C/W/331/Add.1
Page 39
I. ENFORCEMENT
23. Please describe in detail the manner in wh ich the laws of Tunisia provide for effective
action against infringement of intellectual prop erty rights as required by Article 41.1 of the
TRIPS Agreement.
Provision is made for civil and criminal proceedings and penalties in the event of
infringement of industrial property rights.
Counterfeiting is punishable by a fine of 5,000 to 50,000 dinars (Article 51 of Law No. 2001-
36 of 17 April 2001 on the Protection of Trademar ks, Article 24 of Law No. 2001-21 of 6 February
2001 on the Protection of Industrial Designs and Ar ticle 83 of Law No. 2000-84 of 24 August 2000 on
Patents);  or by a fine of 1,000 to 50,000 dinars for infringements relating to layout-designs ofintegrated circuits (Article 34 of Law No. 2001- 20 of 6 February 2001 on the Protection of Layout-
Designs of Integrated Circuits), in addition to the fine of 500 to 2,000 dinars payable by anyone who
causes to appear on his business documents, advertising or products words that give reason to believe
that a layout-design has been registered.
It should also be noted that in all these cases of infringement repeat offenders are liable to
imprisonment for one to six months and the doubling of the fine.
Moreover, in the event of conviction the court may order the infringing products to be
destroyed or placed outside the channels of commerce and confiscated (Article 36 of the Law on theProtection of Layout-Designs of Integrated Circ uits, Article 26 of the Law on the Protection of
Industrial Designs and Article 55 of the Law on the Protection of Trademarks).
The seizure of counterfeit products is also provided for in Article 86 of the Law on Patents,
Article 38 of the Law on the Protection of Layout-Designs of Integrated Circuits, Article 28 of theLaw on the Protection of Industrial Designs and Article 50 of the Law on the Protection of
Trademarks.
Literary and artistic intellectual property (copyright and related rights) is protected in Tunisia
by the following:
- Ordinary law, i.e. general civil and criminal legislation (Code of Obligations and
Contracts, Commercial Code, Law on Comp etition and Prices, Code of Civil and
Commercial Procedure, Penal Code, Code  of Penal Procedure, Customs Code);
- special ( sui generis ) legislation, specifically Law No. 94-36 of 24 February 1994 on
Literary and Artistic Property, which provides, inter alia  for the following:
There is a presumption of infringement where the user of a work fails to produce the requisite
authorization.  Any person who infringes copyright is liable to the payment of damages, as determined
by the competent court, in addition to criminal penalties (fines and imprisonment for repeat
offenders).
The competent court may order, ex officio or at the request of the author, the confiscation or
destruction of fraudulent copies and the temporary or definitive closure of the establishment in which
the infringement has been ascertained.
The owner of an establishment open to the public in which an infringement has been
committed (public showing, sale or rental of copies) who acted with full knowledge of the facts will
be regarded as jointly and severally liable for making good the moral and material damage resulting
from the use of fraudulent works.IP/C/W/331/Add.1
Page 40
The identification of infringements is entrusted to the criminal investigation police authorities
and officials of the Ministry of Culture duly swor n and empowered for this purpose by the Minister.
The purpose of the draft law is to establish more effective measures and procedures for
combating infringements of copyright and related rights, in conformity with the letter and spirit of the
TRIPS Agreement and the two WIPO Treaties (WCT and WPPT) of December 1996.  The draft law
accordingly makes provision for:
- Adopting specific border measures and establishing procedures to guarantee the rights
of the parties involved;
- extending authority to report infringements to other government bodies;
- strengthening criminal penalties.As regards enforcement, Tunisian general legislation contains provisions to ensure effective
action against any infringement of the above rights, while guaranteeing the right of the defence.
The judicial authorities are thus empowered to take various types of decision in the form of
interim orders, payment orders and final or other judgments.
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as
necessary, the court may ask the reporting judge to carry out any investigative action, such as an
inquiry, visit to the scene, expert’s report, taking of pleas of forgery and any other action that will help
to establish the truth.  The court may, during the hear ing and in the presence of the parties, set the date
for the investigative action so ordered, specifying the date and time for the appearance of the parties inthe chambers of the reporting judge or at the location of the dispute or any other location".
Article 225 of the Code states that "in any event, the court may require ex officio the
participation of a third party in the proceedings where it sees the presence of that party as essential for
a correct appreciation of the matter at issue".
If it is necessary to obtain an expert's report and the parties fail to agree on the selection of the
expert, the expert is appointed by the judge.
Interim orders
Article 201 of the Code of Civil and Commer cial Procedure (CPCC) states as follows:
"Interim orders may be made on urgent applications without prejudice to the main
proceedings."
"Interim orders on urgent applications may be made by the president of the court of first
instance or his deputy, or by the district judge, where so authorized by law" (Article 202 of the
CCCP).
"Interim orders made on urgent applications are enforceable 24 hours after being served,
except where the court has granted an extension.
The order shall be enforced without security, unless the judge has ordered that security be
provided" (Article 207 of the CCCP).IP/C/W/331/Add.1
Page 41
Payment orders
Under the terms of Article 59 of the CCCP, any claim for the payment of a debt, where the
latter, whatever its nature, is for a specific amount and has a contractual origin, may be submitted
under the payment order procedure.
Judgments
The CCCP establishes three judici al levels, i.e. first instance, appeal and cassation.  The
judgment will not be final if the decision can be appealed.  However, it may still be made immediately
enforceable, with or without security, depending on the circumstances of the case (Articles 126 and
286 of the CCCP).
Final judgments
The final judgment (after appeals have been exhausted or the time-limits for lodging appeals
have expired) brings the case to a close by deciding the question forming the subject-matter of theproceedings.
24. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order
production of evidence necessary to substantiate a party's claims where that party has been
unable to obtain such evidence from the opposi ng party.  Please describe how the laws or
regulations of Tunisia provide this authorization, citing to the relevant provisions of law or
regulation.
Pursuant to Article 43 of the TRIPS Agreement, Tunisian legislation empowers the judicial
authorities to order a party in proceedings, on application by the opposing party, to produce theevidence lying in its control.
Articles 213 to 223 of the Code of Civil and Commercial Procedure give the presiding judge
authority to serve an order on either party in a case following an ex parte  application, so as to ensure
the protection of rights and interests that must not be left unprotected.
In cases of extreme urgency, judges may rule in their private homes on questions submitted to
them.  Enforcement of rulings issued in this manner is not subject to the appending of the seal of the
court or " ad hoc " registration.  These formalities are completed later.
Orders on ex parte  applications are exempted from the registration procedure and are enforced
without delay by bailiffs.  A request for the withdrawal of such an order does not suspend
enforcement.
Article 101 of the Code stipulates that "if it is necessary to obtain an expert's report and the
parties fail to agree on the selection of the expert, the expert is appointed by the judge".
25. Please describe in detail all of the civil remedies that are available to right holders under
the laws of Tunisia, citing to the relevant provisions of law or regulation.
Under Articles 82 and 83 of the Code of Ob ligations and Contracts (COC), anyone who
knowingly or deliberately causes material or moral damage to others must make good the damage,where it is established that his action was the direct cause.
Along these same lines, Article 51 of Law No. 94-36 of 24 February 1994 on Literary and
Artistic Property stipulates that anyone who infringes copyright as set forth in this Law will be
required to pay the copyright owner damages for material and moral injury caused, in the amountIP/C/W/331/Add.1
Page 42
determined by the competent court.  The draft law amending and supplementing Law No. 94-36
extends these provisions to include related rights.
The following civil remedies are available to right holders under Tunisian law:
- Injunctions;
- damages, including recovery of profits, and expenses, including lawyer's fees;
- destruction or other disposal of infringing goods and materials/implements for their
production;
- any other remedies.
Injunctions
The judicial authorities are empowered to take various types of decision in the form of interim
orders, payment orders and judgments.
Interim orders
Article 201 of the Code of Civil and Commer cial Procedure (CPCC) states as follows:
"Interim orders may be made on urgent applications without prejudice to the main
proceedings."
"Interim orders on urgent applications may be made by the president of the court of first
instance or his deputy, or by the district judge, where so authorized by law" (Article 202 of the
CCCP).
"Interim orders made on urgent applications are enforceable 24 hours after being served,
except where the court has granted an extension.
The order will be enforced without security, unless the judge has ordered that security be
provided" (Article 207 of the CCCP).
Payment orders
Under the terms of Article 59 of the CCCP, any claim for the payment of a debt, where the
latter, whatever its nature, is for a specific amount and has a contractual origin, may be submitted
under the payment order procedure.
Judgments
The judgment will not be final if the decision can be appealed.  However, it may still be made
immediately enforceable, with or without security, depending on the circumstances of the case
(Articles 126 and 286 of the CCCP).
Final judgments
The final judgment brings the case to a close by deciding the question forming the subject-
matter of the proceedings.IP/C/W/331/Add.1
Page 43
Damages, including recovery of profits, and expenses, including lawyer's fees
Under Articles 82 and 83 of the Code of Ob ligations and Contracts (COC), anyone who
knowingly or deliberately causes material or moral damage to others must make good the damage,
where it is established that his action was the direct cause.
Article 82 of the Law on Patents, Article 34 of the Law on the Protection of Layout-Designs
of Integrated Circuits, Article 24 of the Law on th e Protection of Industrial Designs and Article 44 of
the Law on the Protection of Trademarks likewise provide for the civil liability of the infringer.
Destruction or other disposal of infringing goods and materials/implements for their production
According to Article 55 of the Law on the Protection of Trademarks, Article 36 of the Law on
the Protection of Layout-Designs of Integrated Circ uits and Article 26 of the Law on the Protection of
Industrial Designs, if the court finds against the defendant it may order the destruction or disposal
outside the channels of commerce of the products or goods found to be infringing and the forfeiture of
the implements used to make them.
Any other remedies
Under Article 34 of the Law on the Protection of Layout-Designs of Integrated Circuits,
Article 24 of the Law on the Protection of Industrial Designs and Article 54 of the Law on theProtection of Trademarks, in every case the court may order, at the expense of the unsuccessful party,
the ruling to be published, in full or in part, in newspapers of its own choosing and to be posted up in
places of its choice, in particular at the main gates of factories or workshops of that party or in the
party's shop windows.
26. Please describe in detail the provisional procedures and remedies available to right
holders under the laws of Tunisia, citing to th e relevant provisions of law and regulation, and
indicate any condition under which a right holder may avail itself of those procedures and
remedies.
As regards copyright, ordinary law provides for interim orders and orders on ex parte
applications, as explained above (see reply to the question on enforcement of intellectual propertyrights) to ensure the adoption of appropriate provisional measures.
Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property empowers
the competent court to order, ex officio or at the request of the author, the confiscation or destruction
of copies and the temporary or definitive closure of the establishment in which the infringement hasbeen ascertained.
Article 54-1 of the draft law amendi ng and supplementing Law No. 94-36 of
24 February 1994 provides that "the right holder or his representative may, as a preventive measure
and under an order made by the president of the court on an ex parte  application, have a bailiff
assisted by an expert undertake a detailed description, with or without attachment, of allegedly
counterfeit goods that infringe copyright or related rights".
As stipulated in Article 201 of the Code of Civil and Commercial Procedure, "interim orders
may be made on urgent applications without prejudice to the main proceedings".
As regards industrial property rights , Law No. 2000-84 of 24 August 2000 on Patents
provides for a detailed description, with or without  attachment, of the allegedly infringing products or
processes by a bailiff assisted by an expert, under an order made by the president of the court on an exIP/C/W/331/Add.1
Page 44
parte  application.  In the event of attachment, the order may require the applicant to furnish security,
which must be posted before the goods are attached.
Similar measures are provided for in:
- Law No. 2001-20 of 6 February 2001 on the Protection of Layout-Designs of
Integrated Circuits (Article 38);
- Law No. 2001-21 of 6 February 2001 on the Protection of Industrial Designs (Article
28);  and
- Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks (Article 50).Such measures may also be ordered because of urgency or difficulties relating to the
enforcement of a judgment delivered or a writ of execution.  They are made by the president of the
competent court or his deputy sitting in chambers, in accordance with Articles 201 and 210 of the
Code of Civil and Commercial Procedure.
As regards procedures, an action is initiated under the interim procedure by ex parte
application to the president of the competent court, who may prohibit, provisionally and on pain of a
fine, the continuation of the allegedly infringing acts or make such continuation subject to the
provision of security designed to ensure the indemnification of the owner of the mark or the holder ofan exclusive right (Article 49 of the Law on the Protection of Trademarks).
This procedure is also provided for in the laws on patents (Article 87), layout-designs of
integrated circuits (Article 38) and industrial designs (Article 28).
J. 
SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES
27. Please describe in detail the procedures under the laws of Tunisia that provide for
border enforcement at least for trademark counte rfeiting and copyright piracy, identifying the
competent authority and citing to the re levant provisions of law or regulation.
Types of intellectual property covered by border measures
In addition to covering counterfeit trademark and pirated copyright goods (draft law in
preparation), the scope of applications for suspension by customs of the release into free circulation of
goods infringing intellectual property rights has been extended to include:
- Goods that infringe a patent;- goods incorporating a counterfeit industrial design;- goods incorporating a copied layout-design of an integrated circuit.
Competent authorities
Patent holders, creators of layout-designs of integrated circuits and owners of protected
industrial designs or registered trademarks or their successors in title who have good grounds for
suspecting that goods that infringe their rights are being imported may apply in writing to the customsservices for the suspension of import clearance for these goods.IP/C/W/331/Add.1
Page 45
Application requirements
Under the provisions in force, the application must include:
- The full name/business name and address of the applicant;- evidence that the applicant is the holder of a right in the goods at issue;- a description of the goods detailed enough to enable customs to recognize the goods.In addition, the applicant should provide any other useful information that might enable the
customs services to reach an informed decision, although the provision of such information is not aprerequisite for the admissibility of the application.
In particular, such information should relate to:- The location of the goods or their intended destination;- the identification of the consignment or packages;- the estimated date of arrival or warehousing of the goods;
- the means of transport used;
- the identity of the importer, exporter or holder of the goods.The application must also include an undertaking by the applicant to assume liability in
respect of the importer if it is formally established that the goods detained by customs do not infringe
the protected industrial property right.
The applicant must inform the customs services if his right is no longer validly registered or
has expired.
An order issued by the Ministry of Finance on 3 December 2001 (regulation) specifies where
(General-Directorate of Customs) and when (prior to  the arrival of the goods at, or their removal from,
the customs office) the application must be filed and the persons authorized to lodge the application
(right holder or his successors in title).  Applicants residing abroad are required to appoint an agent
established in Tunisia.
The order also specifies the form in which applications must be lodged.  Applications are
valid for a period of 12 months from the date on which the customs services notified their acceptance.
If possible, the above information should also include a detailed description of the goods at
issue, together with a photographic or any other gr aphic reproduction as well as a sample of the goods.
The order stipulates that where the goods at issue are detained by customs, the applicant is to
be informed by mail, fax or any other means of telecommunication.
Various requirements relating to the duration of suspension
Where the customs services find, if necessary after consulting the applicant, that the goods
correspond to those described in the application, they will proceed to detain those goods.IP/C/W/331/Add.1
Page 46
The customs services will immediately inform the applicant and the importer of the action
taken and give them the opportunity to inspect the goods detained and take samples for the purpose of
carrying out any tests or analyses needed to establ ish the existence of an infringement, in accordance
with the provisions of the Customs Code and without  prejudice to the principle of confidentiality of
information.
Provided that all the customs formalities have been satisfied, the measure suspending the
release of the goods is revoked ipso jure , unless within 10 working days of being notified of the
detention of the goods the applicant can show to the satisfaction of the customs services that he has
initiated civil or criminal proceedings before the competent court;  that precautionary measures have
been ordered by the president of the court;  and that  security sufficient to cover his liability in respect
of the persons concerned has been posted.  The amount of the security is fixed by the court.
Where appropriate, the above-mentioned initial period  may be extended by a maximum of
10 working days.
Moreover, the owner of the goods, the importer or the consignee may obtain the release of the
goods by posting security in an amount fixed by the court and sufficient to protect the interests of the
applicant, provided that all the customs formalities are satisfied.
If the detention measure is discharged, the customs services will promptly inform the owner,
the importer, the consignee and the applicant.
Security or equivalent assurance and indemnifica tion of the importer and of the owner of the goods
The measure suspending the release of the goods is revoked ipso jure , unless within
10 working days of being notified of the detention of the goods the applicant can show to thesatisfaction of the customs services that he has initiated civil or criminal proceedings before the
competent court;  that precautionary measures have been ordered by the president of the court;  and
that security sufficient to cover his liability in respect of the persons concerned has been posted.  The
amount of the security is fixed by the court.
The owner of the goods, the importer or the consignee may obtain the release of the goods by
posting security in an amount fixed by the court and sufficient to protect the interests of the applicant,provided that all the customs formalities are satisfied.
Moreover, where the application has been accepted or where detention measures have been
taken, the customs services may require the applicant to post security sufficient to ensure payment of
the costs incurred as a result of keeping the goods under customs control.
Right of inspection and information
Upon receipt of an application drawn up in accordance with the provisions governing the
lodging of applications, the customs services will examine the application and immediately inform theapplicant of their decision in writing.  The reasons for the decision must be duly given.
Where the customs services find, if necessary after consulting the applicant, that the goods
correspond to those described in the application, they will proceed to detain those goods.
The customs services will immediately inform the applicant and the importer of the action
taken and give them the opportunity to inspect the goods detained and take samples for the purpose of
carrying out any tests or analyses needed to establ ish the existence of an infringement, in accordance
with the provisions of the Customs Code and without  prejudice to the principle of confidentiality of
information.IP/C/W/331/Add.1
Page 47
Upon production of an order made by the president of the court on an ex parte  application and
in order to facilitate the initiation of legal proceedings, the customs services will inform the applicant
of the full names and addresses of the exporter, the importer and the consignee of the goods, if they
are known to them, as well as of the quantity of the goods forming the subject of the application.
28. Please indicate if border enforcement is available to owners of other forms of intellectual
property and, if so, please describe the procedures and remedies available in relation to each
form of intellectual property, citing the relevant provisions of law.
In addition to covering counterfeit trademark and pirated copyright goods (draft law in the
process of being adopted in Parliament), the scope of applications for suspension by customs of therelease into free circulation of goods infringing intellectual property rights has been extended to
include:
- Goods that infringe a patent;
- goods incorporating a counterfeit industrial design;
- goods incorporating a copied layout-design of an integrated circuit.The procedures relating to border measures, as described in the reply to question 27 above,
fully apply to these various forms of intellectual property.
The statutory provisions covering border measures are set forth in:- Chapter VII of Law No. 2001-20 of 6 Febr uary 2001 on the Protection of Layout-
Designs of Integrated Circuits (Articles 39 to 48);
- Chapter V of Law No. 2001-21 of 6 Februa ry 2001 on the Protection of Industrial
Designs (Articles 31 to 40);
- Chapter XIII of Law No. 2000-84 of 24 August 2000 on Patents (Articles 91 to 99);
- Chapter VII of Law No. 2001-36 of 17 Ap ril 2001 on the Protection of Trademarks
(Articles 56 to 65).
29. Article 58 of the TRIPS Agreement specifies procedures to be followed where the
competent authorities can act ex officio.  Plea se explain whether the competent authorities in
Tunisia are empowered to act ex officio and, if s o, please identify the intellectual property areas
subject to ex officio action.
The customs services may on their own initiative suspend customs clearance of goods that
infringe a protected industrial property right.  In this case:
- The customs services will immediately inform the right holder or his successors in
title, who must lodge an application in accordance with the above-mentioned
application procedure within three days of being notified by the customs services,
whereupon the provisions concerning suspension will apply ipso jure ;
- a detention measure applied in the context of ex officio action taken by the customs
services will automatically be discharged if the holder of the protected industrial
property right or his successor in title fails to lodge an application in accordance with
the application procedure within three days of being notified by customs.IP/C/W/331/Add.1
Page 48
Ex officio action may be taken in respect of allegedly infringing goods in the following fields
of intellectual property:
- Patents (Article 97 of Law No. 2000-84 of 24 August 2000 on Patents);- trademarks (Article 62 of Law No. 2001-36 of 17 April 2001 on the Protection of
Trademarks);
- layout-designs of integrated circuits (Article 45 of Law No. 2001-20 of 6 February
2001 on the Protection of Layout-Designs of Integrated Circuits);
- industrial designs (Article 37 of Law No. 2001-21 of 6 February 2001 on the
Protection of Industrial Designs).
K. 
CRIMINAL PROCEDURES
30. Please describe in detail how the laws of Tunisia implement Article 61 of the TRIPS
Agreement that requires Members to have criminal procedures and penalties, including
imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful
trademark counterfeiting and copyright infringement  on a commercial scale.  Please cite to the
relevant provisions of law and regulation.
In addition to reparation for damage in civil proceedings, Article 52 of Law No. 94-36 of
24 February 1994 on Literary and Artistic Property provides that copyright infringements are
punishable by a fine of 500 to 5,000 dinars.  The fine is doubled in the event of a repeat offence, with
the possibility of a term of imprisonment of one to six months.
Article 52 (new) of the draft law amending and supplementing Law No. 94-36 of
24 February 1994 increases the fine to an amount ranging between 1,000 and 50,000 dinars.  The fine
is doubled in the event of a repeat offence, with the possibility of a term of imprisonment of up to
12 months.
As regards the authorities responsible for identifying infringements and instituting criminal
proceedings, Article 54, paragraph 1, of Law N o. 94-36 of 24 February 1994 states that "the
identification of breaches of this Law and the drawing up of records of evidence are entrusted to the
criminal investigation police authorities and officials of the Ministry of Culture duly sworn and
empowered for this purpose".  Article 54 (new) of the draft law amending and supplementing Law
No. 94-36 extends these prerogatives to customs officials, officials responsible for monitoring
economic activity and municipal regulatory officials.
The authorities may institute criminal proceedings on their own initiative.  Thus, paragraphs 2
and 3 of Article 54 (new) of the draft law amending and supplementing Law No. 94-36 of
24 February 1994 stipulate that "the above-mentioned officials may seize the necessary documents
and take samples of the counterfeit products for the purposes of the investigation and to establishproof of the infringement, against receipt.  They may also seize, as a preventive measure, any products
suspected to be counterfeit and not in accordance with current regulations".
Anyone who infringes the rights of the owner of a duly registered mark is subject to criminal
proceedings and penalties.
Moreover, Article 51 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks
provides for a fine of 5,000 to 50,000 dinars.  The fine is doubled in the event of a repeat offence, with
the possibility of a term of imprisonment of one to six months (Article 53 of the Law).IP/C/W/331/Add.1
Page 49
31. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture
and destruction of infringing goods and any materials and implements the predominant use of
which has been the commission of the offence.  Please describe the provisions in the laws of
Tunisia that provide for such remedies, and desc ribe the circumstances in which those remedies
would be imposed, citing to the relevant provisions of law or regulation.
Copyright
Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property provides
that the competent court may order, ex officio or at the request of the author, the confiscation or
destruction of fraudulent copies and the temporary or definitive closure of the establishment in whichthe infringement has been ascertained.  The owner of the establishment where the infringement has
been committed will be regarded as jointly and severally liable with the principal offender for making
good the damage.
Criminal penalties for infringement of industrial property rights also include seizure,
forfeiture or destruction of the infringing goods and of the materials and implements used for making
them.
Layout-designs of integrated circuits
Pursuant to Article 36 of the Law of 6 February 2001, if the court finds against the defendant
it may order the destruction of the infringing goods or their disposal outside the channels of
commerce, together with the forfeiture of the impl ements used for making them.  The injured party
may, even before publication of the registration, cause a detailed description, with or without
attachment, of the infringing articles or implements to be undertaken, under an order made by thepresident of the competent court on an ex parte  application and production of the registration
certificate (Article 38).
Industrial designs
According to Article 26 of the Law of 6 February 2001, if the court finds against the
defendant it may order the forfeiture of the implements used for making the infringing articles.
The injured party may have a bailiff undertake a detailed description, with or without
attachment, of the infringing articles or implements under an order made by the president of the
competent court on an ex parte  application and production of proof of registration (Article 28).
Trademarks
Anyone who brings an infringement action unde r Article 48 of the Law of 17 April 2001 may,
in any place and under an order made by the president of the competent court on an ex parte
application, have a bailiff assisted by an expert attach goods or services allegedly marked, offered forsale, delivered or supplied to his detriment or in violation of his rights.
Where attachment is authorized, it will be confined to the seizure of samples necessary to
prove the infringement.  The president of the court may make attachment subject to the provision by
the applicant of security sufficient to compensate  for any injury suffered by the defendant if the
infringement action subsequently proves to be unfounded (Article 50).
The court may order the forfeiture of the goods and of the implements used for committing
the offence.  It may also order the destruction of the goods (Article 55).IP/C/W/331/Add.1
Page 50
Indications of source and appellations of origin
The officers responsible for monitoring appellations of origin and indications of source may
seize products put on sale under registered appellations of origin or indications of source andsuspected of not coming from the geographical area designated by the appellation or indication.
They may also seize products coming from the geographical area designated by the
appellation or indication but not meeting the specified technical production requirements (Article 30
of Law No. 99-57 of 28 June 1999).
Patents
Anyone entitled to bring an infringement action may, under an order made by the president of
the court on an ex parte  application, have a bailiff assisted by an expert undertake a detailed
description, with or without attachment, of the allegedly infringing goods or processes.
Where attachment is authorized, it will be confined to the seizure of any samples necessary to
prove the infringement.  The order may require the applicant to provide security, which must be
posted before any goods are seized (Article 86 of Law No. 2000-84 of 24 August 2000).
32. Article 61 also indicates that Members may provide for criminal procedures and
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describe
any provisions of the laws of Tunisia that prov ide for such procedures and remedies, citing to
the relevant provisions of law or regulation.
The procedures and penalties for infringement of copyright and related rights are the same as
those described in the reply to question 30 above (K.  Criminal Procedures).
Tunisian legislation provides that in all fields of industrial property, i.e. patents, trademarks,
industrial designs and layout-designs of integrated circuits, the court may order, at the expense of the
unsuccessful party, the ruling to be posted up in places of its own choosing and to be published, in full
or in part, in newspapers of its choice.  The relevant provisions are as follows:
- Article 34 of Law No. 2001-20 of 6 Fe bruary 2001 on the Protection of Layout-
Designs of Integrated Circuits;
- Article 24 of Law No. 2001-21 of 6 February 2001 on the Protection of Industrial
Designs;
- Article 54 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks.
L. STATISTICAL QUESTIONS
33. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout-design, and trade secret
enforcement for 2000, including the number of cases filed; injunctions issued; infringing
products seized; infringing equipment seized; cases resolved (including settlement); and the
amount of damages awarded.
A commission made up of the various authorities concerned with copyright (Ministries of the
Interior, Justice, Trade and Culture) was established in order to coordinate activities to be conducted
in this field.  Model contracts for the use of works protected by copyright were drawn up.IP/C/W/331/Add.1
Page 51
An awareness-raising campaign was conducted among users and in the press.
Several disputes were resolved through friendly settlement.  Various copyright proceedings
were instituted, but no figures are yet available.
There are no statistics available on civil enforcement in 2000.
34. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringeme nt for 2000, including the number of raids,
prosecutions, convictions, and the amount of fines and/or jail terms (including whether the fines
were paid and whether the jail term was actually served or was suspended) and any otherinformation establishing that the criminal syst em operates effectively to deter copyright piracy
and trademark counterfeiting.
There are no statistics available on criminal enforcement in 2000.
JAPAN
A. 
COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of  the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbouring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
The above principles apply in Tunisia, which abides by its international commitments and
monitors compliance with these principles, while taking into account the principle of reciprocityenshrined in Article 32 of the Tunisian Constitution, which provides that lawfully ratified conventions
have primacy over national laws, provided that they are applied by the other party.  That same
principle is confirmed in Article 57 of Law No. 94-36 of 24 February 1994 on Literary and Artistic
Property, which states that foreign works "are eligible for protection on condition that the country
concerned affords equivalent protection to works of Tunisian nationals".
The last paragraph of Article 56 (new) of the draft law amending and supplementing Law No.
94-36 of 24 February 1994 further provides that "the provisions of this Law relating to copyright shall
apply to works eligible for protection under an international convention to which Tunisia is party".
Likewise, the last paragraph of Article 57 (new) of the draft law amending and supplementing
Law No. 94-36 of 24 February 1994 stipulates that "the provisions of this Law shall also apply toperformances, phonograms or videograms and broadcasts protected under an international convention
to which the Tunisian State is party".IP/C/W/331/Add.1
Page 52
SWITZERLAND1
A. PATENTS
Ad reply to question 1:
You mention that according to your Law, plant varieties shall be excluded from patent
protection.  Please explain how your legislation pr ovides for protection of plant varieties.  Is it
by a sui generis  protection as referred to in Article 27.3(b) of the TRIPS Agreement?
For the purposes of plant protection, Tunisia has enacted Law No. 99-42 of 10 May 1999 on
Seeds, Seedlings and Plant Varieties.
This Law establishes a sui generis  protection system for plant varieties, which is consistent
with the UPOV model law.
B. PROTECTION OF UNDISCLOSED INFORMATION
Ad reply to question 5:
Referring to the issue of unfair commercial use of data submitted by an applicant to the
responsible State Agency in the procedure for market authorization of a pharmaceutical or of
an agricultural chemical product, please specify whether your legislation sets a specific term of
protection for undisclosed test or other data of the first applicant.
Pharmaceuticals are governed by Laws Nos. 73-55 of 3 August 1973 and 85-91 of 22
November 1985.  Implementing rules and regulations have been enacted, including:
- Decree No. 90-1400 of 3 September 1990, laying down rules of good manufacturing
practice for medicines for human use and regulating quality control, packaging,
labelling, denomination and advertising;
- Decree No. 90-1401 of 3 September 1990 laying down procedures for medical or
scientific testing of medicines for human use;
- Order of the Minister of Public Health of 10 September 1996 establishing the
procedures for authorization to market medicines for human use and renewal and
assignment of such authorization.
The above texts, pursuant to the laws that gave rise to them, provide for disciplinary sanctions
and civil and criminal penalties for infringement.
The processing of applications relating to medicines is governed by procedures and provisions
that guarantee the security of information.  They are detailed as follows.
Reception of applications:  This is handled by a pharmaceutical inspector dealing directly with
the person delegated by the laboratory filing the application.  The application, countersigned by the
inspector, is then returned to the person with an official filing date.
                                                     
1 The responses below supplement Tunisia's replies to the initial questions posed by Switzerland, as
circulated in document IP/C/W/331.IP/C/W/331/Add.1
Page 53
Assessment of applications:  Applications ar e kept under the inspector's responsibility.
Pharmaceutical files are sent to the National Drug Control Laboratory, which determines whether the
product is in conformity with what is stated in its file, in the light of current pharmaceutical
knowledge.  Clinical files are submitted to an e xpert appointed by Ministerial order for a detailed
report to an expert committee.
Assessment of products similar to registered products:  Data confidentiality is crucial at this
stage, in order to prevent the use of data recorded in another file.
In Tunisia, as in most countries with a reliable registration system, the procedure is based on
the following:
- Clinical data pertaining to a molecule that is the subject-matter of a second application
is not required because the molecule has already been analysed;
- regulations require the product to be approved for marketing in its country of origin
(Autorisation de mise sur le marché  - AMM);  where this is a country having signed
the WTO Agreements, responsibility for observance of the provisions governing
patents lies with the country of origin, if no application for a patent specific to another
country has been filed;  where the country has not adhered to the WTO Agreements, it
is for Tunisia to ensure observance of intellectual property provisions;
- application for marketing approval requires submission of a pharmaceutical file,
including analysis methods which must satisfy either of the following conditions:
(a) where the product is described in an international pharmacopoeia, reference to
the latter is sufficient to validate the methods used;
(b) if such is not the case, the supplier is required to present a method that he
himself has validated without referring to the data furnished by the first holder
of the marketing authorization.
Scientific publications may be used, however, for the relevant authority regards the results
they contain as having become public knowledge at the initiative of the patent holder or of theinternational scientific community.
The procedure applied by Tunisia has been in force for more than 20 years, making it possible
to avoid conflicts of interest and ensuring data confidentiality.  It has enabled the relevant authority to
acquire the status of WHO Collaborating Centre for drug registration and pharmaceutical regulation.
Article 103 of Law No. 2000-84 of 24 August 2000, which covers pharmaceutical products,
makes provision for delaying implementation of the Law according to the extension period set in the
relevant WTO Agreement.
Tunisia nevertheless assures the admissibility of patent applications pursuant to that same
international Agreement.
All the aforementioned information and references to regulation are public and can be
accessed at:  www.dpm.tn.
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