WORLD TRADE
ORGANIZATIONIP/C/W/300/Add.2
25 August 2003
(03-4427)
Council for Trade Related Aspects and
Intellectual Property RightsOriginal:  French
REVIEW OF LEGISLATION
Responses by Congo to Questions Posed by European Communities and their
Member States and by Switzerland
Addendum
By means of a communication of the Permanent Mission of Congo, dated 8 July 2003, the
Secretariat has received the following responses to  questions posed by the European Communities and
their Member States and by Switzerland, which were circulated in documents IP/C/W/244 and
IP/C/W/239/Add.2.
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EUROPEAN COMMUNITIES AND THEIR MEMBER STATES
A. ENFORCEMENT
53. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
Congolese law (revised Bangui Agreement, Article 58) punishes the offence of infringement
with a fine of 1,000,000 to 3,000,000 CFA francs.
Article 59 punishes recidivism and aggravating circumstances with a fine of 1,000,000 to
3,000,000 CFA francs plus imprisonment for a term of one to six months.
54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
Regarding the implementation of Article 50 of  the TRIPS Agreement relating to provisional
measures in civil and criminal proceedings for infringement of a patent holder's right, the Bangui
Agreement does not provide for any provisional measures.  Rather, it establishes conditions for
initiation of criminal proceedings (Article 61 of Annex I on patents) and provides for the exceptional
competence of the criminal court (Article 62);  infr ingement seizure (Article 64);  and the burden of
proof (Article 66).
Article 61 of Annex I on patents stipulates that:  "Criminal action seeking the imposition of
penalties may only be brought by the Office of the Public Prosecutor on a complaint by the injured
party."IP/C/W/300/Add.2
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Article 62 stipulates that:  "the criminal court, when dealing with an action for infringement,
shall rule on the arguments put forward by the accused in his defence, such as the alleged invalidity or
forfeiture of the patent or questions relating to ownership of the said patent."
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.
Under Articles 64 (Infringement Seizure) an d 62 (Exceptional Competence of the Criminal
Court) of Annex I, the competent authorities for infringement seizure and infringement offences are
the president of the civil court, the criminal court and the administrative police.
57. Please quote what provisions of your legisl ation authorize the competent authorities to
order the destruction or disposal of infringing goods.
Article 67 (Other Sanctions) of Annex I stipulates that:  "The confiscation or destruction of
recognized infringing objects, and, where necessary, that of implements or tools specially intended for
their manufacture shall, even in the case of acquittal , be ordered against the infringer, the receiver, the
introducer or the retailer."
Article 43 (Fate of Counterfeited Marks and G oods), paragraph (3) of Annex III stipulates
that:  "In all cases the court may order the destruction of goods bearing marks recognized as being
contrary to the provisions of Article 37", i.e. pe nalties for unlawful exploitation of a registered mark,
fraudulent imitation of a registered mark, etc.
59. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Annexes I and II of the Bangui Agreement provide for the implementation of Article 61 of the
TRIPS Agreement in Articles 37, 38, 40, 42, 43 and 44 relating to penalties in Annex III on marks.
Article 37 of Annex III on marks provides for punishment by a fine of 1,000,000 to
6,000,000 CFA francs and imprisonment for a term of three months to two years for persons
unlawfully exploiting a registered mark.
Article 40:
(1) In the event of recidivism, the penalties specified in Articles 37 and 38 shall be
doubled.
(2) Recidivism shall be deemed to have occurred when, within the preceeding five years,
the offender has been found guilty of one of the offences specified in Annex III on
marks.
N.B.:  Questions 56 and 58 will be answered later on.IP/C/W/300/Add.2
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SWITZERLAND
Ad response to question 1:
Please confirm that, in accordance with Article 27.1 of the TRIPS Agreement, your
legislation provides that patent rights shall be  enjoyable without discrimination as to whether
products are imported or locally produced and that importation of patented products shall be
taken into account when determining if the n eeds of the national market are sufficiently
covered.
The question of the enjoyment of patent rights without discrimination as to whether products
are imported or locally produced can be assimilated to the principle of national treatment which
requires, for the protection of patent rights, that nationals and foreigners from WTO Member
countries (Article 3 of the TRIPS Agreement) enjo y the same rights and obligations with respect to
application procedures and provisions for the enforcement of patent rights.
The response to this concern can be found in the revised Bangui Agreement of
24 February 1999 which serves as domestic legislation for the Republic of Congo, inter alia  Article 3
of the Bangui Agreement and Article 13 of Annex I on patents.
Article 13 (Right of Foreigners to Patents) of Annex I stipulates that:  "Foreigners may obtain
patents on the conditions specified in this Annex."  Th is implies that all patent applicants (national or
foreign) enjoy the same privileges and obligations without discrimination.
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