RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/153
5 October 1999
(99-4122)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
KYRGYZ REPUBLIC
By means of a communication from the Permanent Mission of the Kyrgyz Republic, dated
24 September 1999, the Secretariat has received a copy of the following answers to questions posed
by the United States.1
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1. With respect to each form of intellectual property right covered by Part II of the TRIPS
Agreement and with respect to enforcement, pl ease describe the manner in which the Kyrgyz
Republic has assured that nationals of other WTO Members receive treatment no less
favourable than Kyrgyz nationals with regard to  matters affecting the availability, acquisition,
scope, maintenance and enforcement of such rights.
The Kyrgyz Republic provides no less favourable regime to nationals of other WTO Members
than the one it provides to its own nationals.
Issues concerning availability, acquisition, scope, maintenance and enforcement of
intellectual property rights are determined by the relevant laws regulating copyright and neighbouring
rights, trademarks, geographical indications, industrial designs, patents, topographies of integrated
circuits and commercial secrets.  The given laws do not contain discriminating provisions for foreignnationals of WTO Member countries.
Standards in relation to availability, scope and use of intellectual property rights reflected in
the TRIPS Agreement can be presented in the following way.
Copyright and neighbouring rights
Legal protection covers the form of expression but not the ideas, procedures, methods of
exploitation or mathematical concepts per se .  Computer software and databases are objects of
copyright and that is why the same protection is provided to them as well as to other objects ofcopyright.  The Law of the Kyrgyz Republic "O n Copyright and Neighbouring Rights" (hereinafter
referred to as the "Law on Copyright") provides authors not only protection of exclusive proprietary
rights, but also protection of non-proprietary rights.  The main proprietary rights of authors are the
rights to reproduction and to distribution, including the right to rental.  Authors of computer software,
audio-visual works and phonogram producers have the right to permit or prohibit rental of theirobjects on a commercial basis.
The Law on Copyright establishes deprivation and limitations of authors' rights under the
condition that this does not damage legal interests of authors and does not cause unjustified damage to
normal use of works.
                                                     
1 Document IP/C/W/151.IP/C/W/153
Page 2
The standard in relation to protection time-period is met.  The minimum term of copyright,
established by the law, is 50 years after the author's death.
In relation to performers the Law on Copyright stipulates protection from non-authorized
recording, making copies and reproduction of their concert performances for the period of 50 years.
Producers of phonograms have the right to prevent making copies of their recordings within 50 years.
Trademarks and geographical indications
The Law of the Kyrgyz Republic "On Trademarks, Service Marks and Appellations of Places
of Origin" (hereafter – the "Law on Trademarks") regulates relations connected with trademarks,service marks and appellations of the places of origin, called in the TRIPS Agreement geographical
indications.
The minimum mandatory conditions, which mean availability of the registered trademark,
prevent any other person, who is not the owner of the registered trademark, from the use of identicalor similar trademarks labelled on the identical and similar goods in comparison with those ones,
which the owner of a trademark has registered in cases when such a use will, probably, result in
confusion.
The Law on Trademarks regulates the provisions in relation to non-registered well-known
trademarks.  The trademarks that have become well known in the country are protected.
The term of a trademark protection is ten years from the date of filing an application.
Registration of a trademark can be extended an unlimited number of times.
Use of the trademark is a requirement for ma intaining/keeping the registration in force.
Trademarks consisting of a geographical indication or having it as part of the trademark can
be rejected to register or announced invalid in relation to the goods, which are not originating from
the specified territory, if the use of the indicati on in the trademark in relation to such goods can
confuse the public about the real place of origin.
Industrial designs and patents
Regulation of relations in connection with creation and use of inventions and industrial
designs is carried out by the Patent Law of the Kyrgyz Republic (hereinafter "the Patent Law").
An industrial design is not new or original if it does not differ substantially from the known
samples or combinations of their well-known essential features.
Industrial designs are protected within ten years.  Owners of the protected samples have the
right to permit or prohibit production, selling or import of goods, which are produced with the use orbased on the samples – copies of the protected industrial design.
Patents are issued for any inventions, regardless of whether they are products or a method, in
all spheres of technology under the condition that they possess novelty and contain creativity level
and are applied in industry.  The patent provides to its owner exclusive rights to prevent third partiesfrom carrying out the following actions without his permission:  use, sale, offer to sell and
importation.
The patent validity term is 20 years.IP/C/W/153
Page 3
The Patent Law stipulates deprivation of the exclusive rights provided by patent under the
condition that such deprivation does not unreasonably contradict the normal use of a patent and, with
the consideration of legal interests of third parties, does not unjustifiably damage the legal interests of
the patent owner (compulsory licence).  The Regulation on the Conditions and the Procedure of
Issuing Compulsory Licenses (hereinafter "Regul ation on Compulsory Licences") adopted for
implementation of the specified provision by the Government of the Kyrgyz Republic, regulates the
issues of such deprivation in detail.
Topographies of integrated circuits
The Law of the Kyrgyz Republic "On Legal Prot ection of Topography of Integrated Circuits"
provides legal protection to topographies of integrated circuits.  The term of protection is ten years.
Importation, sale or other distribution for commercial purposes of the protected topographies
or goods containing such an integrated circuit without the right holder's permission, are recognized as
illegal actions.  The aforementioned actions are permitted if the person, using topography, pays the
right holder the amount equivalent to a reasonable royalty.
The Regulation on Compulsory Licences permits issuance of a compulsory licence only for
non-commercial use by the state or for correcting the practice which was determined as anti-
competitive as the result of court or administrative proceedings.
Commercial secrets
The legal protection of commercial secrets is provided in compliance with the Law of the
Kyrgyz Republic "On Commercial Secrets".  A commercial secret is confidential information of a
commercial value and is an object of relevant actions,  aimed at protecting its confidentiality on thepart of the person legally controlling this informati on.  Such information is protected against violation
of its confidentiality or other actions, wh ich contradict fair commercial practice.
Enforcement of intellectual property rights
The legislation of the Kyrgyz Republic stipulates procedures on enforcement of intellectual
property rights and remedies, which play a deterrent role with respect to further infringements.
Civil and administrative measures and remedies:  Right holders are provided with a
possibility to bring civil cases in courts.  Means of identification and protection of the information
confidentiality during the litigation are stipulated.  The court bodies have the right to order submission
of evidence to the court or to the other party.
The court bodies have the right to order the party to refrain from committing infringements
(for example, by seizure of counterfeit goods).  The legislation stipulates payment of compensation
for illegal use of objects of intellectual property, which includes the corresponding attorney's fee.
The Court has the right to seize from the tr ade network counterfeit goods and to destroy
materials and implements used in the production of the goods.
Besides, the responding party, with respect to which measures of rights enforcement were
unfairly applied, has the right to get relevant compensation for damages and expenses.
The Code on Administrative Liability of the Kyrgyz Republic provides for liability for
infringements of intellectual property rights.IP/C/W/153
Page 4
Provisional measures
Judicial authorities have the right to order prompt and effective measures to prevent
infringements of any intellectual property right and, in particular, to prevent the entry of counterfeit
goods to the market.
Border measures
The Customs Code of the Kyrgyz Republic contains provisions on customs regime with
respect to intellectual property objects (Articles 28-31).  The provisions of the Code above provide for
the following border measures:  filing an application with customs bodies for suspension of the goods
release, requirement of a security or an equivalent guarantee, notification of the importer and theapplicant, term of suspension, indemnification of the importer and of the owner of the goods, the right
of a right holder to inspection of the goods and to information regarding importers and quantity of the
goods and forfeiture or destruction of counterfeit goods.
Criminal measures
The Criminal Code (Articles 150, 191) provides for criminal liability for the infringement of
the rights to intellectual property objects.  Depending on the severity of the committed infringement
of the law, sanctions in the form of imprisonment and/or fines shall be applied.
2. Please describe in detail the manner in which the Kyrgyz Republic has implemented its
obligation under Article 18 of the Berne Convention incorporated into the TRIPS Agreement by
Article 9.1, and under Article 14.6 of the TRIPS Agreement, to restore protection for copyrights
and sound recordings that are still under protection in their country of origin and have not had
a full term of protection in the territory of the Kyrgyz Republic.
According to item 1 of Article 5 of the Law of the Kyrgyz Republic On Copyright and
Neighbouring Rights (further referred to as the "Law on Copyright"), copyright covers works,
published or non-published but existing in some objective form outside the Kyrgyz Republic that are
recognized as belonging to the authors (their successors in title) who are nationals of other countries –
members of international treaties, to which the Kyrgyz Republic is a signatory.
The Law On Copyright establishes a 50 year term of protection or works after the author's
death.  This period also covers those works of the nationals of Berne Convention Member States
which are not yet in public domain, i.e. the term of protection has not expired in the country of origin.
Protection of these works on the territory of the Ky rgyz Republic is provided within the remaining
term of protection.
These provisions apply to objects of neighbourin g rights.  A 50 year term of protection is
provided to the following objects:
Performances – from the moment of the first performance or play;Producers of phonograms – from the moment of the first publication of a phonogram or from
the moment of its first recording if the phonogram has not been published;
Broadcasting (cable) organizations – from the moment of broadcasting the programme (by
cable).IP/C/W/153
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3. Article 5.1 of the Law on Copyright and Ne ighbouring Rights extends protection to
published and non-published works that exist in some objective form outside the Kyrgyz
Republic that are owned by the authors who are citizens of other countries that are members of
international agreements to which the Kyrgyz Republic belongs.  Please describe how copyright
protection is extended to authors who are not nationals of a Berne Union Member but whoseworks are first published, or simultaneously published, in a Berne Union Member as required
by Article 3(1) of the Berne Convention, incorp orated into the TRIPS Agreement by Article 9.1
thereof.
The aforementioned Article 5 of the Law on Copyright protects published and non-published
works that exist in some objective form outside the Kyrgyz Republic, which authors (their successors
in title) are nationals of other countries in accord ance with the international treaties to which the
Kyrgyz Republic is a signatory.
Protection is provided according to the following two criteria:  the principle of nationality and
the principle of the place of the first publication.
According to the criterion of the first publication there are works:
- first published in the Kyrgyz Republic – they shall always be protected;- first published in a country which has concluded an international treaty on copyright
with the Kyrgyz Republic – they shall be protected if at the moment of the first
publication thereof the Kyrgyz Republic was a party of the international treaty, to
which this country was a signatory;
- first published in other countries – they shall never be protected.Therefore, works of authors who are not nationals of the Berne Convention Member States,
but first published on the territory of a Berne Convention Member State, are provided with legal
protection within the territory of the Kyrgyz Republic.
4. Article 7.1 of the Law on Copyright and Ne ighbouring Rights provides protection for
computer software for all types of computers including applied programmes and operationsystems.  Are the computer programmes protected "as literary works under the Berne
Convention (1971)" as required by Article 10.1 of the TRIPS Agreement?
According to paragraph 1 of Article 7 of the Law On Copyright, software for all types of
computers, including applied programmes and operation systems, are included in the list of copyrightobjects.
Article 2 of the Law of the Kyrgyz Republic On Legal Protection of Software and Database
provides legal protection to software as a literary work.
Therefore, the same protection is provided both to software and literary works.
5. Please describe in detail the manner in which well-known trademarks are protected in
the Kyrgyz Republic.
According to Article 5 of the Law of the Kyr gyz Republic On Trademarks, Marks of Service
and Appellations of Origin, designations which are identical or similar to the extent likely to cause
confusion with trademarks well-known on the territory of the Kyrgyz Republic, cannot be registered
as trademarks.IP/C/W/153
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The well-known criteria for a trademark are established by the Cabinet of Ministers of the
Kyrgyz Republic.
At present, a draft Regulation is being developed.  This Regulation will define the well-
known criteria for a trademark.
6. Please describe in detail the manner in which a patent compulsory licence might be
granted in the Kyrgyz Republic, indicating how each of the circumstances under Article 31 of
the TRIPS Agreement is established.
Rules of granting compulsory licences are provided in the Regulation On Conditions and the
Procedure of Granting Compulsory Licences fo r Objects of Industrial Property and Their Use,
approved by Resolution #862 of the Cabinet of Ministers of the Kyrgyz Republic, of
24 December, 1998.
This Regulation has been fully elaborated on the basis of the TRIPS Agreement requirements
and contains all the circumstances provided by Article 31 of the TRIPS Agreement.
The use of an industrial property object protected by patent without the patent holder's
permission shall be permitted if one of the following conditions exists:
(a) if the object of industrial property is not or insufficiently used by the patent owner or
by persons (hereinafter referred to as the right holder) who are assigned rights to it
within a three year period from the date of the patent issuance, that causes insufficient
supply of the relevant goods and services at the market of goods and services of the
Kyrgyz Republic;
(b) in cases of emergency (natural disasters, catastrophes, large accidents) or in the
interests of national security;
(c) in case of non-commercial use of such an object by the Kyrgyz Republic;(d) if it is necessary to correct practice which is determined by the court or anti-
monopoly body as anti-competitive (monopolistic).
Any person, willing and ready to use the object of industrial property properly has the right to
take the case to the court appealing to grant him a compulsory licence for using the specified object.
The court shall consider the given appeal according to the procedures established by the
legislation of the Kyrgyz Republic.
The person who filed an appeal shall provide information proving the actual demand for the
relevant goods and services in the Kyrgyz Republic in the result of non-use or insufficient use of the
object of industrial property by the right holder and also evidence that he has taken efforts to concludea licensing agreement with the patent owner on the conditions relevant to the established practice
within a reasonable period of time and that these efforts were unsuccessful.
The given requirements are inapplicable in cases of: emergency (natural disasters,
catastrophes, large accidents) or in the interests of national security, and in case of non-commercialuse of such an object by the Kyrgyz Republic.
In cases of emergency (natural disasters, catastrophes, large accidents) or in the interest of
national security, the right holder is to be notified as soon as practicable about such use.  In cases of
non-commercial use of the object by the Kyrgyz Republic – the right holder is to be immediatelyIP/C/W/153
Page 7
notified.  Besides, the scope and the term of use of a protected object of industrial property are limited
by the objectives for which it is permitted with payment of a relevant compensation to the right
holder.
If the right holder does not prove that non-use or insufficient use of the object of industrial
property is conditioned by good reasons, the court can grant a compulsory license to its use.  When
taking a decision on granting a compulsory license the court shall take the following provisions into
consideration:
(a) a compulsory licence shall be based on individual qualities of the object of industrial
property;
(b) the scope and the term of such use of a compulsory licence are limited by the aim for
which it is provided;
(c) the amount of payments shall be established not lower than the price of a similar
licence, determined in accordance with the established commercial practice;
(d) a compulsory licence for semi-conductor technology shall be granted exclusively for
non-commercial use by the Kyrgyz Republic or for correcting practice, which is by
the decision of the court or anti-monopoly body determined as anti-competitive;
(e) a compulsory license is a non-exclusive licence and it not subject to reassignment to
another person.  The right to use the specified object of industrial property can be
assigned to another person, to whom the co mpulsory licence is granted, only together
with the relevant enterprise where the given object is used;
(f) a compulsory licence shall be granted only for providing the needs of the Kyrgyz
Republic market.
The patent owner, who cannot use the inventi on without violating the right of the owner of
another patent to an invention or of the certificate for a utility model, who refused to conclude a
licensing agreement on the conditions relevant to the established practice, has the right to appeal to
the court to grant a compulsory licence to use the in vention or the utility model on the territory of the
Kyrgyz Republic under the condition that his invention is an important technical achievement of
economic significance in relation to the invention or utility model, protecting documents of which,
belong to another person.
When the specified licence is being granted, the court shall establish restrictions to the use of
the invention or the utility model, the protecting documents of which belong to another person, in the
amount necessary for using the invention patented by a person, who demands granting a compulsory
licence.  Amount, terms and procedures for payment shall be established by the court,  The amount of
payments shall not be lower than the licence price, determined by the established practice.
Such a licence is not subject to reassignment.  The right to use the invention or the utility
model obtained on the given basis, can be assigned only on assignment of the patent to an invention in
connection with which this right is granted.
The court, when taking a decision on granting a compulsory licence for correcting the practice
which is by the decision of the court or other authorized body recognized as anti-competitive, have the
right not to apply the following conditions:
- conditions, which prior to the use of the object, require the person applying for the
compulsory licence to take efforts to conclude a licensing agreement with the patentIP/C/W/153
Page 8
owner on the conditions relevant to the established commercial practice within the
reasonable period of time, and these efforts are unsuccessful;
- conditions, which require granting the compulsory licence only for meeting the needs
of the domestic market of the Kyrgyz Republic.
The necessity to correct anti-competitive practi ce may be taken into consideration in case of
determination of the amount of compensation.  The court has the right to refuse to cancel the
permission if there is probability that the conditions which brought to such a permission, can appear
again.
The decision on granting a compulsory licence can be reconsidered in cases of full
observance of the legal interests of persons, who ob tained a compulsory licence if the circumstances
which brought to it do not exist any longer and there is little probability that they will appear again.
The court has the right to consider the issue on whet her those circumstances continue to exist if there
is a motivated appeal.
7. Article 39.3 of the TRIPS Agreement requires that WTO Members protect data
submitted to obtain marketing approval for agricultural chemicals and pharmaceutical
products against unfair commercial use and against disclosure.  Please explain in detail the
manner in which the Kyrgyz Republic provides such protection.
In accordance with the Law of the Kyrgyz Republic On Commercial Secrets (hereinafter
referred to as the Law) any information related to manufacturing, technological, managerial, financial
and other activity of the economic entity, constituting commercial secret shall be protected.
Only data constituting commercial secret shall be protected.  Such information must meet the
following requirements:
(1) to be of actual or potential value to an economic entity;(2) not to be publicly known or publicly accessible pursuant to the legislation;(3) to be appropriately labelled in accordance with the measures designed and undertaken
by an economic entity to protect confidentiality through a system of classification of
the aforementioned information, through the development of internal restricted usage
rules, introduction of an appropriate marking of documents and other data carriers,
the streamlining of a data usage, storage and entry process.
Data submitted to obtain marketing approval for agricultural chemicals and pharmaceutical
products which meet the requirements enumerated above shall be protected against unfair commercial
use and against disclosure.
It should be noted that controlling and law enforcement bodies have access to commercial
secrets as they have the right to get familiarised with the information constituting a commercial secret.
However, officials of these bodies shall be liable for disclosure of the data.
Infringement of the legislation on commercial secrets shall entail civil, criminal and
administrative liability.IP/C/W/153
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8. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case
preferably be in writing the better to determin e the reasoning on which the decision is based.
Please state, in regard to each court or admini strative body with jurisdiction over intellectual
property disputes, whether judges or administrative officials must render their decisions inwriting and cite the legal authorities requiring such written opinion.
Bodies with jurisdiction over intellectual property disputes are courts of general jurisdiction,
arbitration courts.  Decisions of the courts of the Kyrgyz Republic are to be in writing, which is
stipulated for in Article 197 of the Civil Procedur al Code of the Kyrgyz Republic, Article 115 of the
Arbitration Procedural Code of the Kyrgyz Republic, Article 317 of the Criminal Procedural Code of
the Kyrgyz Republic, Article 588 of the Code on Administrative Liability of the Kyrgyz Republic.
The above court of general jurisdiction or arbitration court may demand the decision of the
court in case the decision is appealed.
9. Under Article 42, parties are to be entitled  to substantiate their claims and present
relevant evidence.  Please describe any limitations under the law of the Kyrgyz Republic on a
party's ability to substantiate a claim or present relevant evidence and cite the legal authority
providing such limitation.
Article 51 of the Civil Procedural Code of the Kyrgyz Republic provides for obligations of
the court proceedings' parties to provide the eviden ce, to which the party refers to as a ground for its
requirements and complaints.  In the legislation of the Kyrgyz Republic there are no restrictions to the
capacity of the party to substantiate a claim or present relevant evidence.  The parties have the right to
present any evidence.
However, it is necessary to note that the cour t examines the submitted evidence on the basis
of principles of relevance and legality of evidence.
The principle of relevance of evidence means th at the court accepts only that evidence, which
is significant for the case.
The principle of legality evidence means that circumstances, which according to the
legislation should be confirmed by a certain method s of proving, can not be confirmed by any other
methods of proving.
10. Article 43.2 provides that, in the event a party refuses to provide information ordered
by the judicial or administrative officials, thos e officials may be authorized to make preliminary
and final determinations adverse to that party.  Please describe what sanctions may be imposed
on a party that refused to provide ordered information and under what circumstances those
sanctions are imposed, citing the legal authority for those sanctions.
Under Article 49 of the Arbitration Procedural Code and Articles 65, 66, 70 and 71 of the
Civil Procedural Code, the arbitration court and court of general jurisdiction are authorized to impose
a fine on a party as a sanction for failure to submit the required evidence, by the reasons which are
recognized by the court as inadequate.  Imposition of the fine does not exempt the party from
submission of evidence to the court.IP/C/W/153
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11. Article 44.2 authorizes WTO Members to excep t from the authority of courts to enjoin
infringements of intellectual property for government use and for third parties' use on behalf of
governments, limiting the remedy for infringement to payment of adequate remuneration.
Please describe any such limitations on remedi es under the laws of the Kyrgyz Republic and cite
the legal authorities providing for those limitations.
In case of using the rights by the government bodies or third parties, authorized by the
government, without permission of the right holder (compulsory licensing), the remedies are limited
to the payment of adequate remuneration.
In other cases of using the rights without permission of the right holder, the latter has the right
to appeal to the court, and the legislation does not stipulate any limitations for the remedies.
12. Please provide statistical information related  to civil copyright, trademark, geographical
indication, industrial design, patent, integr ated circuit layout-design, and trade secret
enforcement for 1998, including the number of ca ses filed;  injunctions issued;  infringing
products seized;  infringing equipment seized;  cases resolved (including settlement);  and the
amount of damages awarded.
The requested information can not be provided due to the absence of practice of examining
complaints on intellectual property rights infringements in the courts.
The legal proceedings on such disputes have started in 1999, however, no final decisions have
been taken yet.
13. Please provide statistical information relat ed to criminal enforcement in the area of
copyright piracy and trademark infringeme nt for 1998, 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 other
information establishing that your criminal system operates effectively to deter copyright piracy
and trademark counterfeiting.
Please see the answer to question 12 above.
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