RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/88
12 November 1997
(97-4940)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON ENFORCEMENT
Replies from Hungary to questions from the European Communities
and their Member States1, Japan2 and the United States3
The following communication, dated 28 October 1997, has been received from the Permanent
Mission of the Republic of Hungary.
_______________
I. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
1. Hungarian courts typically award quite modest  damages to successful plaintiffs in cases
involving intellectual property rights.  Given this  practice, please explain how Hungary complies with
Article 45.1 of the TRIPS Agreement ("...adequate to compensate for the injury...") and 41.1 of theTRIPS Agreement ("...remedies which constitute  a deterrent to further infringements").
Damages awarded by Hungarian courts to successful plaintiffs in cases involving intellectual
property rights vary from case to case, depending on the circumstances.  Whether damages awarded by
the court are adequate to compensate for the injury the right holder has suffered because of an
infringement can only be judged on a case-by-case basis.  It seems obvious that plaintiffs in casesinvolving intellectual property rights are not satisfied  with the damages the court awards to them in each
and every case.  However, it does not appear well founded to state that it is typical of Hungarian courts
to award only "quite modest" damages to successful plaintiffs in intellectual property cases.
Under Article 35(2) of Act No. XXXIII. of 1995 on the Protection of Inventions by Patents
(hereinafter referred to as the Patent Act), the patentee may, in addition to other remedies, claim
damages in accordance with the rules of civil liability.  Similar provisions can be found in all other
intellectual property laws of Hungary.  Therefore, Ar ticle 355 of the Civil Code (Act No. IV of 1957) is
the legal authority determining the factors to be considered in establishing the amount of compensation.
                                                     
1 IP/C/W/80 .
2 IP/C/W/82 .
3 IP/C/W/83 .IP/C/W/88
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It reads as follows:
"(1) The person liable for the damage shall restore the original state, and if it is not possible,
or if the damaged person does not so wish for a well-founded reason, he shall compensate for the
pecuniary and non-pecuniary damage of the damaged person.
"(2) Damage shall be compensated for in cash, unless the circumstances justify
compensation in kind.  Compensation in kind may be especially justified if the object ofcompensation for damages is produced by the person causing the damage, too, or it is otherwise
at his disposal.
"(3) Annuity can also be stipulated as comp ensation.  Usually, annuity shall be ordered if
compensation is aimed at the support or supplementing the support of the damaged person or his
relative entitled to be supported by him.
"(4) Under the title of compensation for damages, the decrease in value of the property of the
damaged person and pecuniary advantage lost due to the circumstance having caused thedamage, as well as the indemnity or costs necessary for lessening or eliminating the pecuniary
and non-pecuniary damages sustained by the damaged person shall be compensated for."
Therefore, Hungarian law complies with Articles 41.1 and 45.1 of the TRIPS Agreement.
2. Please clarify:
(a) how long the civil procedures for enforcing an intellectual property right will take under
current court practice in Hungary (from initiation of the procedure through the issuance
of a judgement by the court of first instance);
(b) what would be regarded as the average length of time involved in the disposition of a
criminal case involving IPR infringements;
(c) whether, as a result, Hungarian law impl ements Article 41.2 of the TRIPS Agreement,
which states that enforcement procedures shall not entail unwarranted delays.
Civil procedures for enforcing intellectual property rights take under current court practice
approximately one year from the initiation of the procedure through the issuance of a judgment by the
court of first instance.
The average length of time involved in the disposition of a criminal case involving IPR
infringements is 1 to 2 years.
In our view, Hungarian law implements Article 41.2 of the TRIPS Agreement which states that
"enforcement procedures shall not entail unwarranted delays".
There are two kinds of time limits established by Hungarian law for judicial and administrative
proceedings.  On the one hand, time limits are established for courts or administrative bodies.  On theother hand, time limits are also set for the parties.  As to the former, it is only customs administration
procedures in which time limits for the customs authorities apply.  Provisions of the latter kind can be
found not only in the Border Measures Decree (G overnment Decree No. 128/1997. (VII. 24.) Korm. on
Borders Measures Applicable against Infringements of Intellectual Property Rights in CustomsAdministration Procedures) but also in the Code of  Civil Procedure (Act No. III of 1952) and the Code
of Criminal Procedure (Act No. I of 1973).  In th e Code of Criminal Procedure some time limits are
established for the inspecting authorities and for the prosecutor as well.  However, neither the Code ofIP/C/W/88
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Civil Procedure nor the Code of Criminal Procedure contains any time limit to be respected by courts in
the course of their proceedings.
Time limits in customs administration procedures:
- Article 5(1) of the Border Measures Decree establishes a time limit of five working days
following the filing date of the applicat ion for the customs authorities to render a
decision on the merits of the case.
- The applicant must verify within ten working days following the receipt of the decision
by the customs authorities ordering the direct supervision of the infringing goods that a
civil action for infringement has been instituted  by the applicant, in which an application
for a provisional measure by the court has been submitted.  That time limit can be
extended by another ten working days when justified (Article 5(4) of the Border
Measures Decree).
Time limits in criminal procedures:
- The inspecting authorities must, based on the denouncement of the crime, decide on the
commencement or refusal of the investigation within three days following the filing dateof the denouncement.  This time limit can be extended, if circumstances so require, by
fifteen plus fifteen plus thirty days by the heads of inspecting authorities (Article 126(1)
of the Code of Criminal Procedure).
- A criminal investigation has to be terminated within two months following the ordering
thereof.  This time limit may, in appropriate cases, be extended by two plus two months,
and, after that, by the Director of Public Prosecutors (Article 131 of the Code of
Criminal Procedure).
- The inspecting authorities must forward the documentation to the prosecutor within
eight days following the date of notice on the termination of the investigation
(Article 145(1) of the Code of Criminal Procedure).
- The prosecutor must examine the documentation and accordingly decide on the
continuation of the case within fifteen days.  Under extraordinary circumstances, thistime limit can be extended by another fifteen days (Articles 145(2) and 145(4) of the
Code of Criminal Procedure).
- In the court phase, the judge, within eight days following the submission of the
documentation, decides on the continuation of the case, and, if no additional decisionsare necessary, fixes a date for the hearing (Article 167(1) of the Code of Criminal
Procedure).
Time limits in civil procedures:
- The usual time limit established by the judge for the parties to carry out certain actions
in a lawsuit is fifteen days.
There are a number of provisions in the enforcement system in Hungary that ensure expeditious
remedies.  Criminal procedures and customs administration procedures, by their very nature, have the
purpose of taking effective action against any act of infringement of intellectual property rights.
However, it is mainly in respect of remedies available in civil procedures where Hungarian legislationIP/C/W/88
Page 4
has quite recently made significant progress.  In particular, the special provisions on provisional
measures and the preliminary production and preservation of evidence are worth mentioning.  These
provisions, which were introduced this year, by the new Trademark Act (Act No. XI of 1997 on the
Protection of Trademarks and Geographical Indications), are of an interpretative nature in relation to the
Code of Civil Procedure.  They have introduced a statutory presumption in favor of intellectual property
rights holders that there is a need to protect a right "deserving special appreciation" (as is required by the
general rules of the Code of Civil Procedure), if the applicant certifies that the work, invention,
trademark or other subject matter is legally protected, and that he is entitled to that protection, i.e. he is
the owner, or the duly authorized licensee, of the intellectual property right in question.  Furthermore,
courts have been put under the obligation to decide on requests for provisional measures within fifteen
days, at the latest, counted from the day of submission of such a request.  For further details of
expeditious remedies available under Hungarian law, see our replies to the questions related to specific
procedures and remedies.
As to deliberate delays, the short time limits established by the Border Measures Decree have
the effect that parties are forced to avoid delays.  In addition, under Article 5(1) of the Code of Civil
Procedure the court has to prevent all actions which are aimed at, or may lead to, the unjustified
prolongation of a lawsuit.  Articles 5(2) and 5(4) provide that the court should impose a fine on a party
or a representative who, by making false allegations or a declaration or unduly delaying in makingstatements, hinders the conclusion of the lawsuit.  According to Article 120, the fine may amount to Ft
50.000.
In addition, several other provisions in the Code of Civil Procedure (e.g. Article 105(1)
providing that parties are generally not allowed to validly perform an act once omitted, or Article 107
establishing a time limit of fifteen days following the deadline omitted for justifying an omission etc.)also raise obstacles to deliberate delays.
3. In practice, the expenses awarded to a successful complainant in a civil enforcement action are
significantly less than the party’s actual expenses.  In addition, the courts have a discretion to establish
the rate of attorneys’ fees awarded.  The level of su ch fees varies to a great extent.  In light of this
practice, please explain how Hungarian law co mplies with Article 45.2 of the TRIPS Agreement.
Under Article 75 of the Code of Civil Procedure, the costs of proceedings are all costs incurred
either in or out of court in relation to the practical and bona fide conducting of a suit by the parties (costs
of preliminary inquiries and correspondence, official fees of proceedings, authorization, etc., fees of
witnesses and experts, remuneration of interpreters, costs of on-the-spot trial and inspection, etc.).
Disbursements and remuneration of the counsel of  a party must also be added to the costs of
proceedings.
Under Articles 78 and 79 of the Code of Civil Procedure, the defeated party must refund the
costs of litigation of the prevailing party.  The court determines the amount of costs of litigation taking
into consideration the data provided and duly certifi ed by a party.  Such costs, in accordance with
Article 45.2 of the TRIPS Agreement, include appropriate attorney’s fees.
An additional provision can be found in Article 95(3) of the Patent Act which provides that the
expenses and fees of the patent attorney representing a party are to be added to the costs of theproceeding.
However, it belongs to the discretionary power of the court, whether the total amount of the
invoice of the counsel of the right holder (the total retainer fee stipulated by the right holder and hisIP/C/W/88
Page 5
counsel) will be regarded as a justified expense.  Normally, a maximum of 5% of the total amount
disputed or in extremely complicated cases 5% + 50% thereof, i.e. 7.5% is awarded as a justified
counsel's fee.  This calculation is based upon the mandatory rule (Article 1) of the Decree of the Minister
of Justice No. 12/1991. (IX. 29.) IM on the legal counsels' expenses.  It is to be noted that the actual
costs (telecommunication, photocopying, travel, accommodation, typing and similar miscellaneous
costs) paid in connection with the legal counsel's activity are to be reimbursed on top of the fee on thebasis of a detailed account of the said costs to be filed by the legal counsel (Article 2).  In practice,
Hungarian counsels frequently neglect this obligation, they file no account of costs, i.e. they do not use
the possibility to have the actual costs reimbursed on top of their fee.
4. Please explain how Hungary complies with Article 48.1 of the TRIPS Agreement, which provides
that "judicial authorities shall have the authority to order a party at whose request measures were taken
and who has abused enforcement procedures to provid e to a party wrongfully enjoined or restrained
adequate compensation for the injury suffered because of such abuse".
In the sphere of  civil law , general principles such as the doctrine of acting in good faith and the
doctrine prohibiting the abuse of rights can be mentioned as means available to prevent unlawfullyinitiated procedures.  The Civil Code establishes those doctrines in Articles 4 and 5 in the following
way:
"4(1) In the course of the exercise of civil rights and the performance of obligations, parties
shall act in accordance with the requirement of good faith (...).
"5(1) The abuse of rights is prohibited by law.
"5(2) Exercise of a right shall qualify as abuse of rights if it is directed to an aim irreconcilable
with the social purpose of the right, especially if it leads to (...) harassment of persons, injury of
their rights or legitimate interests, or the acquisition of unjust advantages."
The doctrine of acting in good faith also appears in Article 5(1) of the Code of Civil Procedure
and Article 120 provides a possibility for the courts to impose a fine up to Ft 50.000 on a party acting in
bad faith.
In addition, various other provisions of the Code of Civil Procedure also raise obstacles to
unlawful action, e.g. Article 121.1 requiring that the ins titution of an action should involve the indication
of the facts providing grounds for the right to be enforced and also the enclosure of the necessary
evidence thereof, especially documents verifying those facts.  If a party does not meet those
requirements when filing an action, the judge will give the submission back to that party for completion,fixing a short time limit, the unsuccessful lapse of which will cause the rejection of the petition, i.e. the
failure of taking the action (Article 95(1) of the Code of Civil Procedure).  Article 95(2) requires the
simultaneous payment of fees by parties submitting a petition.  As to further financial consequences,
under Article 78, the defeated party must refund the costs of the prevailing party and under Article 80(2)
a party who is unsuccessful in certain acts or fails to meet a deadline or causes unnecessary costs in anyother way cannot, under any circumstances, claim the refunding of its costs originating thereof.
In respect of customs administration procedures , Article 3(4) of the Border Measures Decree
lists the persons entitled to apply for such measures to the customs authorities, and under Article 4(1) an
applicant must verify both the existence of the trademark, geographical indication or copyright
protection and its entitlement to file the application.  Articles 4(1) and 4(2) contain other specific criteria
that must be met by the applicant, and a security must also be deposited at the customs authorities(Article 8(1) of the Border Measures Decree).  If those requirements are not met, the application will be
rejected and, therefore, no measures will be taken by the customs authorities (Article 5(2) of the BorderIP/C/W/88
Page 6
Measures Decree).  In the case of a successful application, the applicant must institute a civil action for
infringement and apply to the competent court for a provisional measure and the applicant must also
present sufficient evidence to support its claim (Article 5(4) of the Border Measures Decree).
In criminal procedures , general principles such as the doctrine of the right of defense and the
presumption of innocence (Articles 3 and 6 of the Code  of Criminal Procedure) are applicable against
abuse which can also be prevented, even before the case enters the court phase, by the inspecting
authorities that are entitled to deny or to discontin ue the investigation.  The prosecutor may also omit to
refer the case to the court or, during the court phase  the prosecutor may drop the charge (Articles 127(1),
139(1),145(2) and 170(1) of the Code of Criminal Procedure).  In addition, false charge is a crime underArticles 233-236 of the Criminal Code (Act No. IV of 1978).
As to damages suffered because of an abuse, a general provision (Article 339(1) of the Civil
Code) can be applied which provides that any pers on who unlawfully causes damage is obliged to give
the injured party compensation for it.
5. Please explain how Hungary complies with the requirement of Article 50.1 of the TRIPS
Agreement to provide "prompt and effective" provisional measures.
Under 156 of the Code of Civil Procedure, the court may order by a provisional measure, on
request, compliance with the action claim (counterclaim) or with any special claim contained in the
request for a provisional measure.  A provisional measure can be obtained if it is necessary to prevent
imminent damage, or to preserve circumstances giving rise to litigation or to protect the petitioner'srights deserving special appreciation.  Furthermore,  the court should be satisfied that the drawbacks
caused by the measure do not outweigh the benefits attainable by it.  The court may subject the ordering
of a provisional measure to a security to be provided by the applicant.  The facts on which the request is
based must be made likely.  The request for a provisional measure can only be submitted after the
statement of claim has been filed.  The court, however, may decide on the provisional measure evenbefore the first trial.  The court is required to decide on a provisional measure promptly, but prior to that,
it has to hear the parties personally or allow them to  present their cases in writing.  The hearing of the
parties may only be omitted if the provisional measure is urgently needed, or if the party concerned does
not comply with the time limit or period fixed for the hearing.  Although an appeal may be lodged
against the court’s decision ordering a provisional measure, it does not necessarily have a suspensive
(delaying) effect on the execution of the measure, i.e. it can be executed in advance.
These provisions of the Code of Civil Procedure (as amended by Act LX of 1995) meet the
requirements of Article 50 of the TRIPS Agreement.
Special provisions on provisional measures applicable in the case of infringement have been
included in Hungarian industrial property and copyright laws by the Trademark Act and are contained in
the Trademark Act itself.
Those provisions are of an interpretative nature in relation to the Code of Civil Procedure, and
are designed to reflect the specialties of intellectu al property cases so that they should enhance the
efficiency of enforcement.  They have introduced a statutory presumption in favor of intellectual
property rights holders that there is a need to protect a right "deserving special appreciation" (as is
required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work,
invention, trademark or other subject matter is legally protected, and that he is entitled to that protection,i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question.
However, this presumption does not apply where six months have already elapsed from the beginning of
the infringement, or sixty days from the date on which the applicant became aware of the infringement
and the identity of the infringer.  (Nevertheless, in such a case a provisional measure can still beIP/C/W/88
Page 7
obtained, but only under the general rules of the Code of  Civil Procedure, i.e. without the "help" of the
statutory presumption.) Furthermore, courts have been put under the obligation to decide on requests for
provisional measures within fifteen days, at the latest, counted from the day of submission of such a
request.
The relevant provisions are the following: Articles 95 (2)-(4) of the Trademark Act,
Articles 52 (3)-(5) of the Copyright Act (Act No. III  of 1969), Articles 20 (3)-(5) of the Industrial Design
Decree (Law Decree No. 28 of 1978), Ar ticles 104 (3)-(5) of the Patent Act.
Furthermore, Articles 207-211 of the Code of Ci vil Procedure provide that, upon request of the
party concerned, preliminary production of evidence is  admissible either before or during the action, if,
among others, it seems likely that evidence could not successfully be taken during the action or in a later
stage of the action, or it would entail considerable difficulties.  In urgent cases, the court may decide on
the preliminary production of evidence even without hearing the adverse party.  In cases of
infringements of intellectual property rights, courts may subject the ordering of preliminary productionof evidence to providing security [Article 95(6) of the Trademark Act, Article 52(7) of the  Copyright
Act, Article 20(7) of the Industrial Design Decree, Article 104(7) of the Patent Act].
See also the replies of Hungary to question 10 of the Checklist of Issues on Enforcement.
4
6. Please explain whether Hungary provides procedures for the suspension of release by customs
authorities of suspected counterfeit trademark goods or pirated copyright goods as required byArticles 51 to 60 of the TRIPS Agreement.
Under the provisions of the Border Measures Decree, in order to prevent the internal entry into
free circulation (i.e. the importation), the export or re-exporting of the illegal (infringing) goods either a
specific or a general  application may be submitted to the competent customs authority.  The action of the
customs authority may be requested regarding specific illegal (infringing) goods or shipments in the caseof a specific application, whereas, in the case of a general application, the action may be required in
relation to a specified producer or country of origin for a period of up to six months.
The specific application must be submitted at the customs office where the import or export of
the illegal goods is expected to take place or where the customs clearance of such goods has been
initiated.
Specific applications - where the place of the customs clearance is unknown - and general
applications must be submitted to the National  Headquarters of the Customs and Finance Guard.
A written application by the right holder is required which must contain the following:
(a) the verification that the protection of the trade mark, or the geographical indication, or
of the copyright or neighboring rights in question exists in relation to the customs goods;
(b) a statement that the person is entitled to act against the infringement;
(c) that person’s request that the customs authority should take the appropriate measures to
place the illegal goods under direct customs supervision;
                                                     
4 IP/N/6/HUN/1 .IP/C/W/88
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(d) the description and relevant characteristics of the customs goods to facilitate
identification, and the circumstances, data, documents which suggest that the
infringement is probable;
(e) the acknowledgment of the obligation to provide the security which is required by
Article 8 of the Decree;
(f) in the case of a general application, the period for which the observation is required.The right holder must communicate the following to the customs authority, provided he is aware
of them:
(a) the place where the customs goods can be found or their place of destination;
(b) such detailed data that enable the shipment , consignment or the package to be identified
(with special regard to the data concerning the packaging and value of the customs
goods and the transport vehicle);
(c) the denomination of the importer, exporter or the owner of the customs goods;(d) the expected time and place of arrival or departure of the customs goods;
(e) all information concerning the customs goods or those involved which may be of
assistance to the customs authority.
Under Article 5 of the Border Measures Decree, the customs authority has to take a decision on
the merits within five working days of the date when the application was lodged.  If a specificapplication has been lodged to request a measure in relation to customs goods which have been
submitted for customs clearance, the customs authority has to take its decision within five days, taking
into account the needs of the customs clearance proceeding.
On the basis of an accepted application, the customs authority places the customs goods under
direct customs supervision for ten working days ,  and the right holder is forthwith notified thereof.  This
deadline may be prolonged by ten working days in a justified case.
Under Article 8 of the Border Measures Decree, the right holder must provide a security for the
customs authority in order to cover the costs of warehousing the customs goods which are placed under
customs supervision.  The security is also required of the applicant for the costs of destroying if the
customs goods are to be destroyed, and for the possible damages payable to the person submitting thegoods for customs clearance.
The amount of the security is 5% of the value of the customs goods if their value can be
established.  If their value cannot be established, the security is a monthly Ft 60.000 (approx. US$ 300)
for each application.  If a general application for a border measure cannot indicate the value of the
goods, and, at the same time, it is filed for a period of six months, the amount of security is as high as Ft360.000.  If the application specifies more countries of origin, or more than one type of goods, it
obviously entails the corresponding multiplication of the amount of Ft 60.000 (which is the basic amount
of security).
If the amount of the security does not cover the costs mentioned above, the right holder must pay
for the difference.IP/C/W/88
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The customs authority, taking into account the binding decision of the court on the merits of the
case, must account for the amount provided by the appl icant as a security in accordance with the rules of
Act C of 1995 on Customs Law, Customs Proceedings and Customs Administration.
The right holder must prove within ten working days of receiving the notification on the
suspension of infringing goods that he has taken an action for infringement and has applied for a
provisional measure to be ordered by the  court.
If the right holder makes a statement that he does not wish to exercise his rights, or fails to prove
that he has applied for a provisional measure, or if the application for such a measure has been rejected
by the court, the customs authority must forthwith notify the person submitting the goods to customs
clearance, and, following this, the customs goods must be treated in accordance with the application of
this latter person.  At the same time, the customs authority notifies the right holder of putting an end to
the direct customs supervision.
Under Articles 5 and 6 of the Border Measures Decree, the right holder must prove within ten
working days of receiving the notification that he has taken an action for infringement and has applied
for a provisional measure to be ordered by the  court.  The court decides, within fifteen working days of
receiving the application for an interim measure, at the latest, whether to maintain the suspension as a
seizure or release the goods.
The importer, consignee or owner might lodge an  application for compensation for injury caused
by wrongful detention or through the detention pursuant to Article 55 of the TRIPS Agreement to the
competent court, in a separate procedure.
7. With regard to cases that involve the infringement of intellectual property, could the
Government of Hungary provide data on the number of:
- law suits that have been filed including their respective outcome and the average length
from the filing of a complaint until the final judgement;
- injunctions that have been issued (as defined in Article 44 of the TRIPS Agreement) and
explain how such injunctions are being enforced;
- provisional measures (as defined in Article 50 of the TRIPS Agreement) that have been
granted and the average length to obtain such measures (from the request);
- suspensions at the border of counterfeit trademark, pirated copyright goods or in
relation to goods where other intellectual property rights are infringed;
- criminal cases including the sentences that have been applied;  whether they have been
executed;  and please also explain what kind of infringement of an intellectual property
right would be regarded as a violation of criminal law;
- seizures and/or destruction of counterfeit trademark and pirated copyright goods.
Furthermore, could the Government of Hungary explain and give practical examples of:
- how the compensation for damages of the infringement of intellectual property rights is
calculated (Article 45.1 of the TRIPS Agreement);IP/C/W/88
Page 10
- what would be regarded as "expenses of the right holder" which have to be reimbursed
pursuant to Article 45.2, first half of the first sentence, of the TRIPS Agreement and how
they would  be calculated;
- whether attorney’s fees can be reimbursed and how such fees would be calculated;
- whether Article 45.2, second sentence, of th e TRIPS Agreement has been implemented in
Hungary and how such "damages" would be calculated?
II. REPLIES TO QUESTIONS POSED BY JAPAN
1. Please indicate the "competent authorities" s tipulated in Article 51 of the TRIPS Agreement.
The competent authority in Hungary authorized to  accept applications for a request to suspend
release of suspected infringing goods is the customs office where the import or export of illegal goods is
expected to take place, or where the customs clearance of such goods has been initiated, or, in the case of
a so-called general application, it may be the National Headquarters of the Customs and Finance Guard.
2. Please explain whether "proceedings leading to a decision on the merits of the case" stipulated
in Article 55 of the TRIPS Agreemen t, are judicial or administrative.
The "proceedings leading to a decision on the merits of the case" are judicial proceedings.
The right holder must prove within ten working days of receiving the notification of the
suspension of infringing goods that he has taken an action for infringement and has applied for
provisional measure to be ordered by the court.
3. Are there any ways other than the application stipulated in Articles 51 and 52 of the TRIPS
Agreement (hereafter referred to as "the Application") which enable a right holder to request the
competent authorities to suspend the release of the goods which infringe IPRs or which are suspected to
infringe IPRs?
There are no any ways other than the application (stipulated in Articles 51 and 52 of the TRIPS
Agreement) which enable a right holder to request the competent authorities to suspend the release to the
goods which infringe IPRs or which are suspected to infringe IPRS, but the customs authority shall take
measures ex officio, to place the customs goods under direct customs supervision, or must place the
customs goods to a bonded warehouse if it obtains such data through its other proceedings, on the basis
of which it is probable that the goods submitted for customs clearance are illegal goods.
4. Please explain what term your country regards  as "a reasonable period within which the
competent authorities shall inform the applicant whether or not they have accepted the Application"
stipulated in Article 52 of the TRIPS Agreement.
Under Section 5 of Government Decree No. 128/1997 (VII. 14.) Korm. on field of customs
administration proceedings against the infringements of intellectual property rights (the Border MeasuresDecree), the customs authority has to take a decision on the merits within five working days of the date
when the application was lodged.  If a specific application has been lodged to request a measure in
relation to customs goods which have been submitted for customs clearance, the customs authority has to
take its decision within five days, taking into account the needs of the customs clearance proceeding.IP/C/W/88
Page 11
On the basis of an accepted application, the customs authority places the customs goods under
direct customs supervision for ten working days ,  and the right holder is forthwith notified thereof.  This
deadline may be prolonged by ten working days in a justified case.
5. Please explain the term during which the Application is effective.
The right holder must prove within ten working days of receiving the notification of the
suspension of infringing goods that he has taken an action for infringement and has applied for aprovisional measure to be ordered by the court.  This deadline may be prolonged by ten working days in
a justified case.  If the right holder makes a statement that he does not wish to exercise his rights, or fails
to prove that he has applied for a provisional measure, or if the application for such a measure has been
rejected by the court, the customs authority must forthwith notify the person submitting the goods to
customs clearance, and, following this, the customs goods must be treated in accordance with the
application of this latter person.  At the same time, the customs authority notifies the right holder of
putting an end to the direct customs supervision.
6. Please explain whether a right holder is obliged to pay any fees to lodge the Application.
The cost of the custom procedure is included in the amount of the security.  The amount of the
security shall be 5% of the value of the customs goods if their value can be established.  If their value
cannot be established, the security shall be a monthly Ft 60.000 for each application.  If the amount of
the security does not cover the costs, the entitled person must pay the difference.
7. Please indicate provisions of laws and ordinances which prescribe the "proceedings leading to a
decision on the merits of the case" stipulated in Article 55 of the TRIPS Agreement. And please
summarize their contents.
In these cases the said proceeding shall be a co mplaint lodged to the competent court.  The
complaint shall contain a petition for an appropriate provisional measure.
In court proceedings concerning trademark infringement the Metropolitan Court has jurisdiction
and exclusive competence.  According to the provisions of the new Trademark Act, in infringement
proceedings, where a party has presented reasonably available evidence sufficient to support its claims,
the judge may order - at the request of the opposin g party - the party to produce documents and other
evidence which are within its control.  The court may subject the ordering of preliminary production ofevidence to providing security.  Similar provisions have been included in other industrial property
legislation and in the Copyright Act by the new Trademark Act.
Law No III. of 1952 on Civil Procedure contains th e rules of provisional measures applicable in
IPR infringement cases as well.  According to the last amendment of the Code of Civil Procedure the
court may order by a provisional measure, on request, compliance with the claim for action(counterclaim) or with the request for a provisional measure if it is necessary to avert imminent damage,
or to maintain unchanged circumstances giving rise to litigation or to protect the petitioner’s, rights
deserving special appreciation and if the drawbacks caused by the measure do not outweigh the benefits
attainable by it.  The court may subject the ordering of provisional measures to providing security.  The
facts on which the request is based must be made likely.  The request for a provisional measure cannot
be submitted before filing the statement of claim,  however, the court may decide on the provisional
measure before the first hearing.  The court decides on the provisional measure out of turn, but prior tothat it hears the parties personally or allows them to  reply to the request in writing.  The hearing of the
parties may only be omitted in case of urgent need or  if the party does not comply with the time limit or
period fixed for the hearing.  Although it is possible to lodge an appeal against the decision on the
provisional measure, this measure may be executed in advance.IP/C/W/88
Page 12
Special provision on provisional measures applicable in the case of infringement have been
included in our industrial property and copyright legislation by the new Trademark Act.
According to them in intellectual property litigat ion, it will be sufficient for courts to assume
that a provisional measure is necessary to protect the petitioner’s rights deserving special appreciation if
evidence is provided that the applicant is the right ho lder or otherwise entitled to act in the procedure and
that the legal protection exists.
These provisions shall not be applied where six months have already elapsed from the beginning
of trademark infringement or 60 days from the date on which the petitioner became aware of the
infringement and of the identity of the infringer.
The court shall decide on the provisional measures out of turn, however, not later than within 15
days from the filing of a request to this effect.
In the proceeding for IPR infringement, the court may subject ordering of preliminary
production of evidence to providing security.
8. Please explain the specific procedure, if any, to be applied to the goods which are not evident
whether or not they infringe IPRs, in Article 55 of the TRIPS Agreement.
The customs authority shall proceed in relation to the illegal (infringing) goods in accordance
with the decision of the court which rules a provisional measure, to be taken.
The customs authority shall implement the customs clearance of the customs goods in
accordance with the provisions of the binding decision of the court which ends the procedure.
9. Please explain the responsibility that the competent authorities and other related authorities
take to the right holders when they fail to suspend the release into free circulation of goods which
infringe IPRs with regard to the suspension based on the Application or the Ex Officio Action stipulated
in Article 58 of the TRIPS Agreement.
See reply to question 11.
10. Please explain the responsibility that the competent authorities and other related authorities
take to the right holders when they examine goods which infringe IPRs and nevertheless release them
into free circulation with regard to the suspension based on the Application or the Ex Officio Action
stipulated in Article 58 of the TRIPS Agreement.
See reply to question 11.
11. Please explain the responsibility that the competent authorities and other related authorities
take to the importers when they suspend the releas e into free circulation of goods which do not infringe
IPRs with regard to the suspension based on the Application or the Ex Officio Action stipulated in
Article 58 of the TRIPS Agreement.
We have no special provisions for the responsibility of the competent authorities prescribed in
the above questions.
Under Article 349 of the Civil Code, liability for damage caused in the sphere of state
administration shall be established only if the damage could not be prevented by ordinary legal remedies.IP/C/W/88
Page 13
These rules shall also apply to liability for damages caused within the sphere of authority of courts and
prosecutors offices.
12. Is the right holder informed of identities of  the importers and consignors when the competent
authorities "suspend" the goods which infringe on IPRs or which are suspected to infringe IPRs, as well
as the case where the right holder is informed of identities of the importers and consignors stipulated in
Article 57 of the TRIPS Agreement?
The customs authority, observing the provisions on the protection of data, has to provide
information, at the request of the right holder, on the person applying for the customs clearance, on the
name and the address of the consignee of the customs goods, and it also has to ensure that the right
holder may observe and examine the customs goods in order that the right holder can exercise his rights.
For the purpose of accelerating customs proceedings the customs authority may take samples from the
custom goods.
13. Please explain the measures to protect confidential information in the course of the inspection
stipulated in Article 57 of the TRIPS Agreement.  And please indicate provisions of laws and ordinances
which prescribe such measures.
The customs authority, observing the provisions on the protection of data, has to provide
information, at the request of the right holder (which should be made in writing), on the person applying
for the customs clearance, and on the name and address of the consignee of the customs goods.  Inrespect of the protection of personal data, Act No. LXIII of 1992 is also applicable.
14. Please explain the procedures of detentions and seizures to be ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
There are no special provisions for the procedures of detentions and seizures ordered by the
competent authorities based on Article 51 and 55 of the TRIPS Agreement.  General provisions of ActLIII of 1994 on Execution by Court are applicable.
15. Please explain the procedures to appeal against any decisions ordered by the competent
authorities based on Articles 51 and 55 of the TRIPS Agreement.
According to Section 156(6) of the Code of Civ il Procedure it is possible to lodge an appeal
against the court decision on the provisional measures in 15 days but this measures may be executed inadvance.  According to the general provisions of Act No C of 1995 on Customs law, Customs
Proceedings and Customs Administration there is a possibility to appeal against the decision of the
customs authority ordering the customs goods requested in the application of the right holder under
direct supervision but the order must be enforced at once.
16. Please explain the basis for calculating the security or equivalent assurance stipulated in
Article 53 of the TRIPS Agreement that the competent authorities may require an applicant when they
suspend the release into free circulation.
See reply to question 6.
17. Please explain who shall pay the cost of detent ions based on Article 51 of the TRIPS Agreement
or destruction stipulated in Article 59 of the TRIPS Agreement.IP/C/W/88
Page 14
The customs authority, taking into account the binding decision of the court on the merits of the
case, shall account for the amount placed by the entitled person as a security in accordance with the rules
of the Act on Customs and Customs Procedure.
18. Please explain what kind of cases are regarded as "the exceptional circumstances" in which the
competent authorities may allow re-exportation of counterfeit trademark goods stipulated in Article 59
of the TRIPS Agreement.
The competent authorities may allow re-exportation of counterfeit trademark goods which are
transit goods and which goods enter the customs territory through non commercial import (de minimis
imports).
According to Section 1 (7) of Act C of 1995 on Customs Law, Customs Proceedings and
Customs Administration non commercial traffic is: importation or exportation of customs goods, goods
not constituting a commercial quantity, imported by, arriving for, exported or sent out by a natural
person, to an individual or total value not exceeding the forint amount defined.
Alcoholic beverages: 1 litre of spirits
1 litre of wine
5 litres of beer
Tobacco products: 500 cigarettes
  100 cigars or  100 g of tobacco
Coffee, tea, cocoa and all spice herbs and their mixtures thereof 1 kilo each except for:
seasoning paprika and the mixture thereof
Other goods: up to the value of Ft 500/item 10 per type
 up to the value of Ft 2.000/item 5 per type up to the value of Ft 5000/ item 2 per type
 up to the value of Ft 5000/item 1 per type
Motor vehicle: 1/year/family
19. Please indicate names of laws and ordinances and their provisions in which the suspension of
the release of goods which infringe IPRs or which are suspected to infringe IPRs is prescribed, asstipulated in Article 51 of the TRIPS Agreement.
Government decree No. 128/1997. (VII. 14.) Korm. on the measures in the field of customs
administration proceedings against the infringements of intellectual property rights (Border Measures
Decree) contains the provisions relating to the suspension of the release of goods which infringe IPRs or
which are suspected to infringe IPRs.
Persons entitled to submit an application are the owner of the trade mark, or the geographical
indication, and the holder of the copyright and neighbouring rights, the user of the trade mark entered
into the Register of Trademarks, in the case of copyrights and neighbouring rights, the user entitled to
use those, and the organisation dealing with the common administration of copyrights and neighbouring
rights.
The customs authority must take a decision on the merits concerning the application within five
working days of the date when it was lodged.  If a specific application has been lodged to initiate aIP/C/W/88
Page 15
measure in relation to customs goods which have been submitted for customs clearance, the customs
authority must take its decision within five days, taking into account the customs clearance proceeding.
The customs authority reject the application, if it has not been submitted by the right holder, if
the application does not meet the necessary requirements, if the right holder does not provide security
On the basis of the accepted application, the customs authority places the customs goods
submitted by the person requesting customs clearance under direct customs supervision, and the rightholder is forthwith notified thereof.
The entitled person must prove within ten working days of receiving the notification that he has
taken an action for infringement and has taken legal proceedings for a provisional measure to be taken.
This deadline may be prolonged by ten working days in a justified case.
The right holder makes a statement that he does not wish to exercise his rights, or has not proven
his application for an interim measure as defined in paragraph 5 or if the application for such a measure
has been rejected by the court, the customs author ity shall forthwith notify the person submitting the
goods to customs clearance and following this, the customs goods shall be treated in accordance with the
application of this latter person.  At the same time it notifies the right holder about putting an end to the
direct customs supervision.
The customs authority takes measures ex officio, to place the customs goods under direct
customs supervision, or shall place the customs goods to a bonded warehouse if it obtains such datathrough its other proceedings, on the basis of which it is probable that the goods submitted for customs
clearance are illegal (infringing) goods.
If, in a proceeding initiated by the office, the person of the right holder cannot be established, the
customs authority contacts the Hungarian Patent Office in the case of an infringement of trademark or
geographical label, or the organisation dealing with the common administration of copyrights in the caseof an infringement of copyright or neighbouring rights.  The Hungarian Patent Office according to the
available data shall inform the customs authority of th e person of the right holder within five days, or if
he does not wish to act against the infringement, th e customs authority shall put an end to the direct
customs supervision, and proceeds with the customs clearance in accordance with the application of the
person submitting the goods.
The entitled person must provide a security for the customs authority in order to cover the costs
of warehousing the customs goods which are placed under customs supervision on the basis of the
customs administration proceeding regulated in this decree, to cover the costs of destroying if the
customs goods are to be destroyed, and to cover the possible damages payable to the person submitting
the goods for customs clearance.
20. Please indicate which IPRs are protected based on the Application by a right holder.
It is possible to apply for the suspension in respect of goods which involve infringements of
trademarks, geographical indications, copyright or neighbouring rights.IP/C/W/88
Page 16
21. Please explain kinds and contents of documents which shall be provided by the applicant to
lodge the Application.
A written application by the right holder must contain the following:
(a) the verification that the protection of the trade mark, or the geographical indication, or
of the copyright or neighboring rights in question exists in relation to the customs goods;
(b) a statement that the person is entitled to act against the infringement;(c) that person’s request that the customs authority should take the appropriate measures to
place the illegal goods under direct customs supervision;
(d) the description and relevant characteristics of the customs goods to facilitate
identification, and the circumstances, data, documents which suggest that the
infringement is probable;
(e) the acknowledgment of the obligation to provide the security which is required by
Article 8 of the Decree;
(f) in the case of a general application, the period for which the observation is required.
The right holder must communicate the following to the customs authority, provided he is aware
of them :
(a) the place where the customs goods can be found or their place of destination;
(b) such detailed data that enable the shipment , consignment or the package to be identified
(with special regard to the data concerning the packaging and value of the customs
goods and the transport vehicle);
(c) the denomination of the importer, exporter or the owner of the customs goods;
(d) the expected time and place of arrival or departure of the customs goods;
(e) all information concerning the customs goods or those involved which may be of
assistance to the customs authority.
22. Please explain the remedies which the judicial authorities order regarding a copyright and other
related rights, patents, industrial designs, trademarks and layout-designs (topographies) of integrated
circuits, including injunctions, damages, expenses, de struction or other disposal of infringing goods and
materials/implements for their production.
Article 27 of the Trademark Act provides for the following remedies (in addition to damages):
"(2) The right holder may depending on the circumstances of the case, have recourse to the
following civil remedies:
(a) request that the fact of infringement be declared by the court;
(b) request an injunction that the infringer cease his infringement;IP/C/W/88
Page 17
(c) demand that the infringer give information on the identity of third persons involved in
the production and distribution of the infringing goods and in the supply of infringing
services and of their channels of distribution;
(d) demand satisfaction from the infringer by way of a declaration or by other appropriate
means; if necessary, the declaration shall be made public by the infringer or at his
expense;
(e) require surrender of enrichment obtained by the infringement of the trademark;
(f) request the seizure of the means used exclusively or predominantly for infringement and
of the infringing products and the packaging thereof.
"(3) The court may rule, at the request of the proprietor, that the infringing nature of the
means, materials, products and packaging seized be removed - in particular by removing the
trademark - or, where this is not possible, that they be destroyed.  In well-founded cases, the
court may order, in place of destruction, that the means and materials seized be auctionedaccording to the rules of court execution procedure; in such case, the court shall decide how the
sum obtained is to be used.
"(4) Seizure of the means and materials used for trademark infringement and of the
infringing products and packaging shall be admi ssible even though they are not in the ownership
of the infringer if the proprietor knew or ha d reasonable grounds to know of the trademark
infringement."
As Article 120 of the Trademark Act has amended other intellectual property laws accordingly,
the same remedies are available, mutatis mutandis , under Article 52 of the Copyright Act, Article 11 of
the Industrial Design Decree, Article 10 of the Act on the Protection of the Topography of
Microelectronic Semiconductor Products and Article 35 of the Patent Act.
23. Please explain whether the amount of damages which judicial authorities order the person who
infringes IPRs to pay the right holder is adequate compensation for the injury the right holder has
suffered, and what criteria and the way for calculation to decide the amount for compensation.
Under Article 35(2) of the Patent Act the patentee may, in addition to other remedies, claim
damages in accordance with the rules of civil liability.  Similar provisions can be found in all otherintellectual property laws of Hungary.  Therefore, Article 355 of the Civil Code is the legal authority
determining the factors to be considered in establishing the amount of compensation.
It reads as follows:
"(1) The person liable for the damage shall restore the original state, and if it is not possible,
or if the damaged person does not wish so for a well-founded reason, he shall compensate for thepecuniary and non-pecuniary damage of the damaged person.
"(2) Damage shall be compensated for in cash, unless the circumstances justify
compensation in kind.  Compensation in kind may be especially justified if the object of
compensation for damages is produced by the person causing the damage, too, or it is otherwise
at his disposal.
"(3) Annuity can also be stipulated as comp ensation.  Usually, annuity shall be ordered if
compensation is aimed at the support or supplementing the support of the damaged person or hisrelative entitled to be supported by him.IP/C/W/88
Page 18
"(4) Under the title of compensation for damages, the decrease in value of the property of the
damaged person and pecuniary advantage lost due to the circumstance having caused the
damage, as well as the indemnity or costs necessary for lessening or eliminating the pecuniary
and non-pecuniary damages sustained by the damaged person shall be compensated for."
24. Please explain whether the amount of damages which judicial authorities order the person who
infringes IPRs to pay the right holder includes investigations expense and appropriate attorney's fees.
Under Article 75 of the Code of Civil Procedure, the costs of proceedings are all costs incurred
either in or out of court in relation to the practical and bona fide conducting of a suit by the parties (costs
of preliminary inquiries and correspondence, official fees of proceedings, authorization, etc., fees of
witnesses and experts, remuneration of interpreters, costs of on-the-spot trial and inspection, etc.).
Disbursements and remuneration of the counsel of  a party must also be added to the costs of
proceedings.
Under Articles 78 and 79 of the Code of Civil Procedure, the defeated party must refund the
costs of litigation of the prevailing party.  The court determines the amount of costs of litigation taking
into consideration the data provided and duly certifi ed by a party.  Such costs, in accordance with
Article 45.2 of the TRIPS Agreement, include appropriate attorney’s fees.
An additional provision can be found in Article 95(3) of the Patent Act which provides that the
expenses and fees of the patent attorney representing a party are to be added to the costs of proceeding.
However, it belongs to the discretionary power of the court, whether the total amount of the
invoice of the counsel of the right holder (the total retainer fee stipulated by the right holder and his
counsel) will be regarded as a justified expense.  Normally, a maximum of 5% of the total amount
disputed or in extremely complicated cases 5% + 50% thereof, i.e. 7.5% is awarded as a justified
counsel's fee.  This calculation is based upon the mandatory rule (Article 1) of the Decree of the Ministerof Justice No. 12/1991. (IX. 29.) IM on the legal counsels' expenses.  It is to be noted that the actual
costs (telecommunication, photocopying, travel, accommodation, typing and similar miscellaneous
costs) paid in connection with the legal counsel's activity are to be reimbursed on top of the fee on the
basis of a detailed account of the said costs to be filed by the legal counsel (Article 2).  In practice,
Hungarian counsels frequently neglect this obligation, they file no account of costs, i.e. they do not usethe possibility to have the actual costs reimbursed on top of their fee.
25. Please describe to what extent the amount of damages have been estimated by courts since
1 January 1996.  Please explain whether the amount of  damages is adequate compensation for the injury
the right holder has suffered, and how such civil procedures are consistent with Article 45 of the TRIPS
Agreement.
The extent to which the amount of damages have been taken into account is closely correlated
with the economical environment where the infringing activity took place.  Since 1 January 1996
damages awarded by the courts are adequate compensation for the injury that the right holder has
suffered as set out in the response to question 24.
The Hungarian civil procedures are consistent with Article 45 of the TRIPS Agreement.IP/C/W/88
Page 19
26. Please explain the kinds and amounts of penaltie s (imprisonment or fines) in criminal cases.
Please also explain whether these penalties are consistent with Article 61 of the TRIPS Agreement which
requires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes of
a corresponding gravity.
Article 329/A of the Criminal Code (Act N o. IV of 1978 on the Criminal Code) qualifies
violation of authors' rights and neighboring rights as a crime in the following manner:
"(1) That person causing financial prejudice by violating the right of the author on his
literary, scientific or artistic work, or that of the performing artist on his performance, or that of
the producer on his sound recording, or that of the radio or television broadcaster on his
program, shall be deemed to commit a misdemeanor, and shall be imprisoned up to two years,
punished to do work for the benefit of the public, or fined.
"(2) The penalty for a felony shall be imprisonment up to three years, if the violation of
authors' rights and neighboring rights:
(a) causes considerable financial prejudice (over Ft 2.000.000);
(b) is committed in a businesslike manner.
"(3) The penalty shall be imprisonment up to 5 years, if the violation of authors' rights and
neighboring rights is committed by causing particularly great financial prejudice (over Ft
6.000.000).
"(4) That person, who commits the violation of authors' and neighboring rights recklessly,
shall be punished for a misdemeanor with imprisonment up to one year, or with work to be done
for the benefit of the public or with fine."
These provisions of the Criminal Code entered into force on May 15, 1993.
Furthermore, under Article 329 of the Criminal Code, an infringement of rights to intellectual
creations is committed when a person makes the false impression that he owns the intellectual creation,
invention, innovation or industrial design of anot her person, and causes thereby pecuniary disadvantage
to the entitled party, or, misusing his job at an economic organization, makes the utilization or assertion
of an intellectual creation, invention, innovation or i ndustrial design of another person dependent on his
being given a share in the fee derived, or in the profit or gains originating therefrom.  This sort ofinfringement is a felony and is punishable with imprisonment up to three years.
As a result of an amendment to the Criminal Code in 1994, false indication of goods also
amounts to a crime, which can be punished by imprisonment up to 3 years.
Under the Criminal Code, seizure and forfeiture (confiscation) is possible in all cases.
The basic rules are the following:  the property must be confiscated which has been used or
designed as an instrument for the perpetration of a crime, if it is owned by the perpetrator, and also
otherwise, if its possession endangers public security; or which came into being through the perpetration
of a crime; or which has been received by the perpetrator of a crime from the owner or from another
person with the owner’s consent, in return for the perpetration.  That printed press material in which
crime is realized must also be confiscated.  In cases defined by the law, that property must be confiscated
in respect of which the crime has been perpetrated, or which was the object of a given pecuniary
advantage.IP/C/W/88
Page 20
In the case of violation of authors' rights and neighboring rights, the tangible property owned by
the offender in respect of which the offense has been committed, must be confiscated.  Confiscation
admissible even when the tangible property is not owned by the offender, but the owner has previously
been aware of the commission of the offense (Article 329/A (5) of the Criminal Code).
Under Article 296 of the Criminal Code false indication of goods is a crime: the person who
markets goods of considerable quantity - without the consent of a competitor - with such characteristic
external appearance, packaging or name from which the competitor or his goods having characteristic,
features can be recognized, commits a felony, and is punishable by imprisonment up to three years.
Furthermore, deception of consumers is committed when the person who - in the interest of increasing
the marketability of goods - states before large publicity untrue facts in a way suitable for deception in
respect of essential features of the goods, or gives information suitable for deception about an essential
feature of the goods.  It is a misdemeanor and punishable by imprisonment up to two years, labor in the
public interest or a fine.  For the purposes of applying these provisions the following qualify as essentialfeatures of goods: their composition, usability, their influence on health or environment, their treatment,
origin, whether they meet legal requirements, standards or habitual requirements for such goods, as well
as if the utilization of the goods requires the realization of conditions essentially differing from habitual
ones.
III. REPLIES TO THE QUESTIONS POSED BY THE UNITED STATES
General Obligations
1. Articles 41.1 and 42 of the TRIPS Agreement require that procedures be available for the
effective enforcement of the intellectual property rights covered by the Agreement.  Please describe the
structure of the judicial and administrative5  procedures in Hungary in which parties can enforce their
intellectual property rights, at local, provincial and national levels, indicating the jurisdiction of eachtype of court or administrative body and explaining the interrelationships, if any, of the various types of
courts and administrative bodies.  Cite the laws or other authorities establishing the structure, including
each type of court and administrative body.
Under Hungarian law, there are three kinds of procedures in which intellectual property rights
can be enforced: civil procedures, customs administration procedures and criminal procedures.
Civil  procedures can be initiated in the case of the infringement of rights deriving from:
- an invention or a patent (Articles 34 and 35 of Act No. XXXIII of 1995 on the
Protection of Inventions by Patents, hereinafter referred to as the Patent Act);
- a trademark or a geographical indication (Articles 27 and 110 of Act No. XI of 1997 on
the Protection of Trademarks and Geographical Indications, hereinafter referred to as theTrademark Act);
- an industrial design (Articles 10 and 11 of Decree-Law of the Presidium of the
Hungarian People’s Republic No. 28 of 1978 on the Protection of Industrial Designs,
hereinafter referred to as the Industrial Design Decree);
                                                     
5 These questions apply to both judicial and administrative enforcement of intellectual property rights
because of Article 49 of the TRIPS Agreement.IP/C/W/88
Page 21
- a topography of microelectronic semiconductor products (Article 10(2) of
Act No. XXXIX of 1991 on the Protection of the Topography of Microelectronic
Semiconductor Products, hereinafter referred to as the Topography Act);
- copyright (Articles 52 and 53 of Act No. III of 1969 on Copyright, hereinafter referred
to as the Copyright Act).
Article 104(1) of the Patent Act, Article 95(1) of the Trademark Act, Article 20(2) of the
Industrial Design Decree and Article 24(1) of the Topography Act provide that the Metropolitan Court
has jurisdiction and exclusive competence in industrial property matters concerning infringements.  As
to copyright matters, it is not the Copyright Act but Article 23(1) of Act No. III of 1952 on Civil
Procedure (hereinafter referred to as the Code of Civil Procedure) which stipulates that county courts
have jurisdiction (Article 10(2) of the Code of Civil Procedure).
The Supreme Court is the court of second instance in industrial property and copyright matters
as well.
However, in respect of copyright litigation, it is to be noted that due to Guidance No. 286 of the
Civil Senate of the Supreme Court, as amended by Guidance No. 290 binding all courts, claims of
collecting societies, whether it is an exclusive right or a right to an equitable remuneration that is
violated, are to be enforced before local (first instance) courts.  (Claims by holders of neighboring rights
are not covered by the aforementioned guidance.)
Pecuniary claims of collective administration organizations can be enforced under the Code of
Civil Procedure, in the same way as any other claim for performance in cash not exceeding Ft 200.000,
i.e. by requesting the court to pass a summary judgment.  (A form is to be filled in by the complainant,
and stamped by the court without hearing the case.) If the defendant files an objection (a quasi  appeal)
against the summary judgment, the same court has to hold a trial and hear the case.  (The relevantprovisions are Articles 313-323 of the Code of Civil Procedure.)
Customs administration procedures  can be applied for in respect of goods -involving
infringements of intellectual property rights deriving from trademark, geographical indication or
copyright protection.  Article 3(1) of Govern ment Decree No. 128/1997. (VII. 24.) Korm. on Border
Measures Applicable against Infringements of Intellectual Property Rights in Customs AdministrationProcedures (hereinafter referred to as the Border Measures Decree) provides that border measures by
customs authorities can be applied for in order to prevent the release into free circulation of such goods.
Initiating a customs administration procedure entails the institution of a civil action for infringement and
also the application for a provisional measure to be ordered by the court (Article 5(4) of the Border
Measures Decree).
Criminal procedures can be initiated in the case of infringements constituting crimes under Act
No. IV of 1978 on the Criminal Code (hereinafter re ferred to as the Criminal Code).  The three
denominated crimes related to intellectual property rights in the Criminal Code are the following:
- false indication of goods (Article 296)
- infringement of rights to intellectual creations (Article 329 of the Criminal Code);  and
- violation of authors’ rights and neighboring ri ghts (Article 329/A of the Criminal Code).IP/C/W/88
Page 22
Article 24 of Act No. I of 1973 on the Code of Criminal Procedure (hereinafter referred to as the
Code of Criminal Procedure) provides that the lo cal courts have jurisdiction, therefore the courts of
second instance are the county courts (Article 20(3) of the Code of Criminal Procedure).
Note that there are no separate civil or criminal courts in Hungary, consequently the same courts
may have both civil and criminal jurisdiction at a certain (local, provincial or national) level.
2. Please describe briefly the procedure that must be followed by a foreign party to initiate an
enforcement procedure in each of the courts and administrative bodies identified in response to
question 1 and cite the legal authorities establishing those procedures.
Civil procedures  can be initiated by the institution of an action for infringement in the
Metropolitan Court indicating the right to be enforced and the facts providing grounds thereof, also
enclosing evidence for the latter (Article 121 of the Code of Civil Procedure).  Appeals to the Supreme
Court are to be filed with the Metropolitan Court within fifteen days following the communication of the
decision, indicating to what extent and for what reasons the review of the first instance court’s decisionis requested (Articles 234 and 235 of the Code of Civil Procedure).
Customs administration procedures can be initiated by the submission of either a specific or a
general application to the competent customs authority.   The application in writing has to meet specific
criteria and the applicant must deposit a security and also, in the course of the customs proceedings,
institute a civil action (Articles 3(1), 4(1), 5(4) and 8(1) of the Border Measures Decree).  See alsoresponses to questions 37-54.
Criminal procedures can be initiated by reporting the crime to the inspecting authorities
(e.g. police, public prosecutor), which can be done by any person (Articles 122(1) and 125(1) of the
Code of Criminal Procedure ).
3. Please identify any requirement that a foreign party must meet to initiate a proceeding in the
courts and administrative bodies identified in answer to question 1 that is not required of a national or
resident of Hungary and cite the legal authorities providing for those differences.
In accordance with Article 89 of the Code of Civil Procedure, a foreign applicant may, upon
request of the defendant, be required to provide a security for the payment of the defendant’s expenses.
However, this provision is very seldom applied in intellectual property cases.
4. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards against abuse
of judicial and administrative enforcement procedur es, including provision for adequate compensation
for injury suffered because of such abuse.  Please describe the means available under the law of
Hungary to prevent abuse of judicial and administrati ve procedures or to remedy damages suffered as a
result of such abuse and cite the legal authorities for those means.
In the sphere of  civil law , general principles such as the doctrine of acting in good faith and the
doctrine prohibiting the abuse of rights can be mentioned as means available to prevent unlawfully
initiated procedures.  The Civil Code establishes those doctrines in Articles 4 and 5 in the following
way:
"4(1) In the course of the exercise of civil rights and the performance of obligations, parties
shall act in accordance with the requirement of good faith (...).
"5(1) The abuse of rights is prohibited by law.IP/C/W/88
Page 23
"5(2) Exercise of a right shall qualify as abuse of rights if it is directed to an aim irreconcilable
with the social purpose of the right, especially if it leads to (...) harassment of persons, injury of
their rights or legitimate interests, or the acquisition of unjust advantages."
The doctrine of acting in good faith also appears in Article 5(1) of the Code of Civil Procedure
and Article 120 provides a possibility for the courts to impose a fine up to Ft 50.000 on a party acting in
bad faith.
In addition, various other provisions of the Code of Civil Procedure also raise obstacles to
unlawful action, e.g. Article 121(1) requiring that the institution of an action should involve the
indication of the facts providing grounds for the right to be enforced and also the enclosure of the
necessary evidence thereof, especially documents verifying those facts.  If a party does not meet those
requirements when filing an action, the judge will give the submission back to that party for completion,
fixing a short time limit, the unsuccessful lapse of which will cause the rejection of the petition, i.e. the
failure of taking the action (Article 95(1) of the Code of Civil Procedure).  Article 95(2) requires thesimultaneous payment of fees by parties submitting a petition.  As to further financial consequences,
under Article 78, the defeated party must refund the costs of the prevailing party and under Article 80(2)
a party who is unsuccessful in certain acts or fails to meet a deadline or causes unnecessary costs in any
other way cannot, under any circumstances, claim the refunding of its costs originating thereof.
In respect of customs administration procedures , Article 3(4) of the Border Measures Decree
lists the persons entitled to apply for such measures to the customs authorities, and under Article 4(1) an
applicant must verify both the existence of the trademark, geographical indication or copyright
protection and its entitlement to file the application.  Articles 4(1) and 4(2) contain other specific criteria
that must be met by the applicant, and a security must also be deposited at the customs authorities
(Article 8(1) of the Border Measures Decree).  If those requirements are not met, the application will berejected and, therefore, no measures will be taken by the customs authorities (Article 5(2) of the Border
Measures Decree).  In the case of a successful application, the applicant must institute a civil action for
infringement and apply to the competent court for a provisional measure and the applicant must also
present sufficient evidence to support its claim (Article 5(4) of the Border Measures Decree).
In criminal procedures , general principles such as the doctrine of the right of defense and the
presumption of innocence (Articles 3 and 6 of the Code  of Criminal Procedure) are applicable against
abuse which can also be prevented, even before the case enters the court phase, by the inspecting
authorities that are entitled to deny or to discontin ue the investigation.  The prosecutor may also omit to
refer the case to the court or, during the court phase  the prosecutor may drop the charge (Articles 127(1),
139(1),145(2) and 170(1) of the Code of Criminal Procedure).  In addition, false charge is a crime underArticles 233-236 of the Criminal Code.
As to damages suffered because of an abuse, a general provision (Article 339(1) of the Civil
Code) can be applied which provides that any pers on who unlawfully causes a damage is be obliged to
give the injured party compensation for it.  (See also our response to question 36.)
5. Article 41.2 addresses, among other things, the cost  of judicial and administrative enforcement
proceedings.  Please describe any fees charged by judicial or administrative officials for filing legal
actions involving intellectual property or for pursuing such actions once initiated, cite the legalauthorities for such fees, and provide copies of the documents used to inform the public of such fees.
Costs of civil procedures: 6% of the case value but not less than Ft 5.000 and not more than
Ft 750.000 in both the first and the second instances (Articles 42(1) and 46(1) of Act No. XCIII of 1990
on Official Fees).IP/C/W/88
Page 24
Costs of customs administration procedures :  the amount of the security to be deposited is 5% of
the value of the goods when that value can be established and Ft 60.000 per application per month when
the value of the goods cannot be established (Article 8(2) of the Border Measures Decree).
The initiation of a criminal procedure involves no costs for the person reporting the crime to the
authorities.
There are no documents used generally or officially to inform the public of such fees.
6. Article 41.2 also addresses the timeliness of judicial and administrative enforcement
proceedings.  Please cite to the legal authorities establishing any time limits for judicial and
administrative proceedings and, if it has not already been done, provide copies of the laws or
regulations in question.
There are two kinds of time limits established by Hungarian law for judicial and administrative
proceedings.  On the one hand, time limits are established for courts or administrative bodies.  On the
other hand, time limits are also set for the parties.  As to the former, it is only customs administrationprocedures in which time limits for the customs authorities apply.  Provisions of the latter kind can be
found not only in the Border Measures Decree but also in the Code of Civil Procedure and the Code of
Criminal Procedure.  In the Code of Criminal Procedure some time limits are established for the
inspecting authorities and for the prosecutor as well.  However, neither the Code of Civil Procedure nor
the Code of Criminal Procedure contains any time limit to be respected by courts in the course of theirproceedings.
Time limits in customs administration procedures:
- Article 5(1) of the Border Measures Decree establishes a time limit of five working days
following the filing date of the applicat ion for the customs authorities to render a
decision on the merits of the case;
- The applicant must verify within ten working days following the receipt of the decision
by the customs authorities ordering the direct supervision of the infringing goods that a
civil action for infringement has been instituted  by the applicant, in which an application
for a provisional measure by the court has been submitted.  That time limit can be
extended by another ten working days when justified (Article 5(4) of the BorderMeasures Decree).
Time limits in criminal procedures:
- The inspecting authorities must, based on the denouncement of the crime, decide on the
commencement or refusal of the investigation within three days following the filing date
of the denouncement.  This time limit can be extended, if circumstances so require, byfifteen plus fifteen plus thirty days by the heads of inspecting authorities (Article 126(1)
of the Code of Criminal Procedure);
- A criminal investigation has to be terminated within two months following the ordering
thereof. This time limit may, in appropriate cases, be extended by two plus two months,
and, after that, by the Director of Public Prosecutors (Article 131 of the Code of
Criminal Procedure);
- The inspecting authorities must forward the documentation to the prosecutor within
eight days following the date of notice on the termination of the investigation
(Article 145(1) of the Code of Criminal Procedure);IP/C/W/88
Page 25
- The prosecutor must examine the documentation and accordingly decide on the
continuation of the case within fifteen days.  Under extraordinary circumstances, this
time limit can be extended by another fifteen days (Articles 145(2) and 145(4) of the
Code of Criminal Procedure);
- In the court phase, the judge, within eight days following the submission of the
documentation, decides on the continuation of the case, and, if no additional decisionsare necessary, fixes a date for the hearing (Article 167(1) of the Code of Criminal
Procedure).
Time limits in civil procedures:
- The usual time limit established by the judge for the parties to carry out certain actions
in a lawsuit is fifteen days.
7. Please explain any provisions in the enforcement system in Hungary that ensure expeditious
remedies.  In addition, please explain what provisions are available to prevent deliberate delays by theparties to a proceeding and indicate the circumstances in which such provisions will be applied.
There are a number of provisions in the enforcement system in Hungary that ensure expeditious
remedies.  Criminal procedures and customs administration procedures, by their very nature, have the
purpose of taking effective action against any act of infringement of intellectual property rights.
However, it is mainly in respect of remedies available in civil procedures where Hungarian legislationhas quite recently made significant progress.  In particular, the special provisions on provisional
measures and the preliminary production and preservation of evidence are worth mentioning.  These
provisions, which were introduced this year, by the new Trademark Act (see the reply to question 1), are
of an interpretative nature in relation to the Code of  Civil Procedure.  They have introduced a statutory
presumption in favor of intellectual property rights holders that there is a need to protect a right"deserving special appreciation" (as is required by the general rules of the Code of Civil Procedure), if
the applicant certifies that the work, invention, trademark or other subject matter is legally protected, and
that he is entitled to that protection, i.e. he is the owner, or the duly au thorized licensee, of the
intellectual property right in question.  Furthermore, courts have been put under the obligation to decide
on requests for provisional measures within fifteen days, at the latest, counted from the day ofsubmission of such a request.  For further details of  expeditious remedies available under Hungarian law,
see our replies to the questions related to specific procedures and remedies.
As to deliberate delays, the short time limits established by the Border Measures Decree have
the effect that parties are forced to avoid delays.  In addition, under Article 5(1) of the Code of Civil
Procedure the court has to prevent all actions which are aimed at, or may lead to, the unjustifiedprolongation of a lawsuit.  Articles 5(2) and 5(4) provide that the court should impose a fine on a party
or a representative who, by making false allegations or a declaration or unduly delaying in making
statements, hinders the conclusion of the lawsuit.  According to Article 120, the fine may amount to Ft
50.000.
In addition, several other provisions in the Code of Civil Procedure (e.g. Article 105(1)
providing that parties are generally not allowed to validly perform an act once omitted, or Article 107
establishing a time limit of fifteen days following the deadline omitted for justifying an omission etc.)also raise obstacles to deliberate delays.IP/C/W/88
Page 26
8. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case preferably
be in writing, the better to determine the reasoning on which the decision is based.  Please state, with
regard to each type of court and administrative body identified in question 1, whether judges or
administrative officials must render their decisions in writing and cite the legal authorities requiring
such written opinions.
With regard to each court or administrative body mentioned in the response to question 1,
decisions have to be in writing (under Article 219(2) of the Code of Civil Procedure, Article 43(3) of the
Code of Administrative Procedure and Article 165(1) of  the Code of Criminal Procedure).  It is also a
general requirement that decisions on the merits of a case be reasoned.
9. Article 41.3 also requires that decisions on the merits of a case be based only on evidence in
respect of which parties had an opportunity to be heard.  Please state, with regard to each type of court
and administrative body identified in question 1, what factors may be considered by a judge or
administrative official in rendering a decision and cite the legal authorities establishing the basis onwhich judges and administrative officials may reach decisions.
In civil procedures , the court has to take or require evidence to establish facts necessary for
rendering a decision.  Means of evidence are, in particular, testimonies, expert opinions, inspections,
documents and other material proofs.  No oath is taken in such proceedings.  No evidence is necessary
with regard to facts of common knowledge or of offi cial knowledge of the court.  Balancing of evidence
should be based on the comparison of statements of the parties and proofs coming up in the course of
evidence.  Results of evidence are to be considered  on the whole and judged according to the conviction
of the court (Articles 163(1), 163(3), 166 and 206(1) of the Code of Civil Procedure).  In connection
with the summary procedure applicable to claims  of collective administration organizations, as
mentioned in the response to question 1, it is to be emphasized that the summary judgment is theoutcome of an "ex parte"  procedure, but in the event of an objection by the defendant against the
summary judgment, the case will have to be heard by the court.
In administrative procedures, the administrative body is required to establish and clarify the
facts necessary for rendering a decision.  Means of evidence are, in particular, statements of the client,
documents, testimonies, inspections and expert opinions.  No evidence is necessary with regard to factsof common knowledge or of official knowledge of the administrative body.  Balancing of evidence is
based on the consideration of the whole evidence.  Facts have to be established according to the
conviction of the administrative body (Article 26 of the Code of Administrative Procedure).
In criminal procedures, means of evidence are, in particular, testimonies, expert opinions,
material proofs, documents, inspections, local inquiries, experiments, presentations for recognition andstatements of the defendant (Article 61(1) of the Code of Criminal Procedure).  There are several
provisions in the Code of Criminal Procedure deriving from the different characteristics of criminal
procedures as compared to civil proceedings, e.g. Article 61(4) providing that facts which are not proved
beyond any doubt must not be judged in a way unfavorable to the defendant; or Article 199 providing
that evidence should begin with the interrogation of the defendant.  Apart from those differences,
provisions on criminal procedures are similar to those on civil procedures.IP/C/W/88
Page 27
10. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial and
administrative decisions in intellectual property en forcement proceedings.  Please describe what legal
limitations, if any, are placed upon the ability of a party to an intellectual property enforcement
proceeding to have both procedural rulings and final decisions reviewed by a separate judicial
authority, and cite the legal authorities providing for such reviews.
Review of decisions in  civil procedures:
- appeal (Articles 233-259 of the Code of Civil Procedure) - a remedy available against
decisions of the court of first instance, to be submitted within fifteen days following the
communication of the decision;
- re-opening of the case (Articles 260-269 of the Code of Civil Procedure) - a remedy
available against a final judgment of the court of first instance in cases specified by
Article 260(1) of the Code of Civil Procedure.  The request for the re-opening of a case
is to be submitted within six months (but under no circumstances more than five years)following the date when the contested judgment became effective;
- review by the Supreme Court (Articles 270-275/B of the Code of Civil Procedure) - a
remedy available against final judgments in the case of an unlawful judgment.  The
request for such review can only be submitted once by the same person with regard to a
particular case and within sixty days following the date of communication of thecontested judgment.
Review of decisions in customs administration procedures:
- modification or revocation of the decision (Article 61 of Act No. IV. of 1957 on
Administrative Procedure, hereinafter referred to as the Code of Administrative
Procedure) - a remedy applied by an administrative body when its decision, having notbeen examined by a superior body or by court, is unlawful.  An administrative body has
the authority to apply this kind of remedy only once in a case and within one year
following the communication of the decision;
- appeal (Articles 62-67 of the Code of Administrative Procedure) - a remedy against a
first instance decision on the merits of a case, to be submitted within fifteen daysfollowing the communication of the decision.  The superior administrative body decides
on the appeal, affirming, modifying or revoking the initial decision;
- supervisory measure (Article 71 of the Code of Administrative Procedure) - a remedy
applicable ex officio  by the superior body within one year following the date when the
decision became effective.  It can be applied if a decision of an administrative body isunlawful;
- judicial review of an administrative decision (Articles 72-73 of the Code of
Administrative Procedure) - a remedy available against an unlawful decision of an
administrative body on the merits of the case.  The review can be requested by
instituting a civil action within thirty days following the communication of the decision,
provided that the right to appeal to a superior administrative body has been exercised, or
such appeal is excluded.IP/C/W/88
Page 28
Remedies in criminal procedures:
- appeal (Articles 235-275 of the Code of Criminal Procedure) - a remedy available
against the whole or a certain part of a decision of the court of first instance, to be
submitted promptly or within three days in the case of an announced decision and within
eight days in the case of a served decision;
- re-opening of the case (Articles 276-283 of the Code of Criminal Procedure) - a remedy
applicable to the defendant’s disadvantage only by the prosecutor and to the defendant’s
advantage by the prosecutor, the convicted person, the counsel for the defense, and, in
certain cases, the relatives of the convicted person, against a final judgment under
circumstances similar to those in the civil procedure;
- review by the Supreme Court (Articles 284-291/A of the Code of Criminal Procedure) -
a remedy applicable to the defendant’s disadvantage only by the prosecutor and to the
defendant’s advantage by the prosecutor, the convicted person, the counsel for thedefense, and, in certain cases, the relatives of the convicted person, against the whole or
a certain part of a final judgment of the court of second instance in certain cases of
violation of substantive law.
In copyright litigation, judgments of county (in this case: first instance) courts are reviewed by
the Supreme Court.  In litigation to be commenced after January 1, 1999, the review will fall within the
jurisdiction of the newly established circuit courts under Article 10(2) of the Code of Civil Procedure
(circuit courts will be regional courts, serving as second instance courts in respect of cases heard by the
county courts in first instance).
In cases of copyright judgments, the "review" of the summary judgment, i.e. the actual hearing,
falls within the jurisdiction of the same court that has passed the summary judgment.
Civil and Administrative Procedures and Remedies
11. Article 42 requires that defendants be notified of judicial and administrative intellectual
property enforcement proceedings brought against them.  Please describe the procedures followed by
each type of court and administrative body identified in question 1 for notifying defending parties
regarding proceedings that have been initiated against them, indicate th e information provided
regarding the proceeding and cite the legal authorities establishing these procedures.
Under Article 125(1) and 126(1) of the  Code of Civil Procedure the judge has to cite the parties
for the hearing enclosing the copy of the claim at le ast eight days before the day of the hearing.  The
parties must be warned that they may have themselves represented at the trial - if they do not appear
personally - by an attorney-at-law.  The parties have to be told to bring documents concerning the case tothe trial, and the defendant has to be warned also of its obligation to make a declaration on the relief
sought at the trial, at the latest, and to present facts providing the basis for its response to the action and
the proofs of these and to produce its documents concerning the case.  The summons of the defendant
has to include that its declaration can be filed or recorded on the day before the appointed day for the
hearing.  A duplicate of the written declaration or the record made on it must immediately be served on
the plaintiff by the court and if there is not enough time left for this, it must be handed over at the trial.IP/C/W/88
Page 29
In cases of summary judgments in copyright cases, the procedure is an ex parte  one.  The
defendant is notified by one original copy of the judgment, which serves as the basis of its objection.  If
the defendant fails to file the objection within 15 days the summary judgment must be regarded as final
and it will be subject to execution.
12. Article 42 also requires that parties to intellectual property enforcement proceedings must be
able to be represented by counsel and must not be subject to overly burdensome requirements to appearpersonally.  Please describe any limitations under Hungary’s laws on the ability of a party in such a
proceeding to be represented by independent legal counsel and any requirements imposed on the party
to appear personally in a proceeding.  Please cite the legal authorities providing such limitations and
imposing such requirements.
Under Hungarian legislation in intellectual property enforcement proceedings there are no such
limitations.
13. Under Article 42, parties are to be entitled to substantiate claims and present relevant evidence.
Please describe any limitations under the law of Hungary on a party’s ability to substantiate a claim or
to present relevant evidence and cite the legal authority providing such limitations.
Under the law of Hungary, in intellectual property enforcement proceedings there are no such
limitations.
14. Article 42 requires, with one narrow exception, that there be a means to identify and protect
confidential information during judicial and admin istrative intellectual property enforcement
proceedings.  Please describe the means provided under the law of Hungary for parties to identify and
have protected confidential information required to be presented in order to prove their claims and cite
the legal authorities providing for such identification and protection.
Article 7 of the Code of Civil Procedure regulates the specific circumstances under which the
public may be barred from the trial of the case in order to protect state secrets, trade (business) secrets or
secrets pertaining to an official service.
Article 89 of the Patent Act contains an additional provision authorizing the court, upon request
of a party, to exclude the public from the hearing or from the pronouncing of the decision, even when the
requirements of the Code of Civil Procedure mentioned above are not fulfilled.  Article 80 of theTrademark Act includes a similar provision.
The Act on the Prohibition of Unfair Market Practices and the Restriction of Competition
provides for the protection of undisclosed information.  It prohibits the use of trade (business) secrets in
an unfair manner as well as their unauthorized disclosure to third persons or the general public.
15. Article 43.1 of the TRIPS Agreement requires that judicial and administrative officials be able to
order a party to an intellectual property enforcement proceeding to produce relevant evidence in that
party’s control identified by the opposing party when the latter party has presented reasonably available
evidence in support of its claims.  Please describe how and in what circumstances judges and
administrative officials may order production of releva nt evidence in intellectual property enforcement
proceedings and cite the legal authorities providing for such orders.
Under Article 95(5) of the Trademark Act, where in the course of proceedings for trademark
infringement, one of the parties has already made the facts likely to a due extent, the court may, uponrequest of the party producing evidence, require the adverse party to present any relevant document and
other exhibits in its possession and to make inspection possible.IP/C/W/88
Page 30
All other intellectual property laws listed in the response to question 1 include a similar
provision, as a result of their amendment by the Trademark Act.
16. Information ordered to be produced, referred to in question 15, must be protected if it is
confidential.  Please describe the means provided under the law of Hungary for protecting such
information and cite the legal authority providing fo r such protection, if those means differ from those
described in answer to question 14.
Confidential information is protected as described in the reply to question 14.
17. Article 43.2 provides that, in the event a party refuses to provide information ordered by the
judicial or administrative officials, those officials may be authorized to make preliminary and final
determinations adverse to that party.  Please desc ribe 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.
There are no special provisions under Hungarian law on sanctions to be imposed on a party that
refused to provide ordered information.
However, under Article 206(1) of the Code of Civil Procedure, the balancing of evidence should
be based on the comparison of statements of the parties and proofs coming up in the course of evidence.
Results of evidence are to be considered on the whole and judged according to the conviction of the
court.
18. Article 44.1 requires that judicial and administrative officials be able to enjoin or otherwise
prevent infringing activity by a party, including by preventing the entry of infringing goods into the
channels of commerce in their jurisdiction.  Please describe authority of the judges and administrative
officials identified in question 1 to order parties to stop infringements and to prevent infringing goods
from entering the channels of commerce in their jurisdiction immediately after clearance of such goodsthrough customs.  In addition, please cite th e legal authorities authorizing such actions.
Under Article 35(2)(b) of the Patent Act, the patentee may request from the court an injunction
that the infringer cease his infringement.  Article 27(2) b) of the Trademark Act provides that the right
holder may request from the court an injunction that the infringer cease his infringement.  Similar
provisions can be found in other industrial property laws.  Article 52(1) b) of the Copyright Act includes
a provision authorizing the right holder to request fr om the court an injunction that the infringement be
stopped and the infringer desist from continuing the infringement.
The courts have the authority to order such in junctions also as preliminary measures.  For a
detailed description of preliminary measures under the law of Hungary see responses to questions 25-36.
19. Article 44.2 provides an exception to the requirement in paragraph 1 for government use or use
by third parties authorized by the government, limiting the remedy for infringement to payment of
adequate remuneration as provided in Article 31(h).  Please describe any such limitations on remedies
in the laws of Hungary and cite the legal au thorities providing for those limitations.
Articles 31-33 of the Patent Act contain provisions on compulsory licenses.  They are fully in
line with the requirements that are to be met under Article 31 of the TRIPS Agreement.  However, if the
government or any third party acting with government approval commits an infringement of an
intellectual property right, the general remedies can be sought for such infringement.  Therefore, underHungarian law, there are no limitations on remedies that are available for infringement through
government use or use by third parties authorized by the government.IP/C/W/88
Page 31
20. Article 45.1 requires that judicial and administrative officials be able to order an infringer to
pay the right holder damages adequate to compensate for the injury caused by the infringement.  Please
describe the authority of the judges and administrative officials identified in question 1 to order a party
found to be infringing to pay the right holder damages  adequate to compensate for the injury caused by
the infringement.  Please explain the factors considered in establishing the amount of the compensation
and cite the legal authorities authorizing such compensation orders.
Under Article 35(2) of the Patent Act the patentee may, in addition to other remedies, claim
damages in accordance with the rules of civil liability.  Similar provisions can be found in all other
intellectual property laws of Hungary.  Therefore, Article 355 of the Civil Code is the legal authority
determining the factors to be considered in establishing the amount of compensation.
It reads as follows:
"(1) The person liable for the damage shall restore the original state, and if it is not possible,
or if the damaged person does not wish so for a well-founded reason, he shall compensate for thepecuniary and non-pecuniary damage of the damaged person.
"(2) Damage shall be compensated for in cash, unless the circumstances justify
compensation in kind.  Compensation in kind may be especially justified if the object of
compensation for damages is produced by the person causing the damage, too, or it is otherwise
at his disposal.
"(3) Annuity can also be stipulated as comp ensation.  Usually, annuity shall be ordered if
compensation is aimed at the support or supplementing the support of the damaged person or his
relative entitled to be supported by him.
"(4) Under the title of compensation for damages, the decrease in value of the property of the
damaged person and pecuniary advantage lost due to the circumstance having caused thedamage, as well as the indemnity or costs necessary for lessening or eliminating the pecuniary
and non-pecuniary damages sustained by the damaged person shall be compensated for."
21. Article 45.2 requires that judges and administrative officials be authorized to order payment of a
right holder's expenses, including legal fees.  Please describe the authority of the judges and
administrative officials identified in question 1 to order payment of right holders’ expenses, thecircumstances under which such an order will be given, the factors considered in establishing the
expenses, and cite the legal authorities authorizing such payments.
Under Article 75 of the Code of Civil Procedure, the costs of proceedings are all costs incurred
either in or out of court in relation to the practical and bona fide conducting of a suit by the parties (costs
of preliminary inquiries and correspondence, official fees of proceedings, authorization, etc., fees ofwitnesses and experts, remuneration of interpreters, costs of on-the-spot trial and inspection, etc.).
Disbursements and remuneration of the counsel of  a party must also be added to the costs of
proceedings.
Under Articles 78 and 79 of the Code of Civil Procedure, the defeated party must refund the
costs of litigation of the prevailing party.  The court determines the amount of costs of litigation taking
into consideration the data provided and duly certifi ed by a party.  Such costs, in accordance with
Article 45.2 of the TRIPS Agreement, include appropriate attorney’s fees.IP/C/W/88
Page 32
An additional provision can be found in Article 95(3) of the Patent Act which provides that the
expenses and fees of the patent attorney representing a party are to be added to the costs of proceeding.
However, it belongs to the discretionary power of the court, whether the total amount of the
invoice of the counsel of the right holder (the total retainer fee stipulated by the right holder and his
counsel) will be regarded as a justified expense.  Normally, a maximum of 5% of the total amount
disputed or in extremely complicated cases 5% + 50% thereof, i.e. 7.5% is awarded as a justifiedcounsel's fee.  This calculation is based upon the mandatory rule (Article 1) of the Decree of the Minister
of Justice No. 12/1991. (IX. 29.) IM on the legal counsels' expenses.  It is to be noted that the actual
costs (telecommunication, photocopying, travel, accommodation, typing and similar miscellaneous
costs) paid in connection with the legal counsel's activity are to be reimbursed on top of the fee on the
basis of a detailed account of the said costs to be filed by the legal counsel (Article 2).  In practice,
Hungarian counsels frequently neglect this obligation, they file no account of costs, i.e. they do not use
the possibility to have the actual costs reimbursed on top of their fee.
22. Article 46 requires that judges and administrative officials be authorized to order, in certain
circumstances, other remedies, including disposal of goods outside commercial channels or destruction
of goods and destruction of materials and implements the predominant use of which is the creation of
infringing goods.  Please describe the additional remedies available under the laws of Hungary, the
circumstances in which such authority will be exercised, the factors considered in determining thenature of the remedies provided, and cite the legal authorities providing for such remedies.
Article 27 of the Trademark Act provides for the following remedies (in addition to damages):
"(2) The right holder may depending on the circumstances of the case, have recourse to the
following civil remedies:
(a) request that the fact of infringement be declared by the court;(b) request an injunction that the infringer cease his infringement;
(c) demand that the infringer give information on the identity of third persons involved in
the production and distribution of the infringing goods and in the supply of infringing
services and of their channels of distribution;
(d) demand satisfaction from the infringer by way of a declaration or by other appropriate
means; if necessary, the declaration shall be made public by the infringer or at his
expense;
(e) require surrender of enrichment obtained by the infringement of the trademark;
(f) request the seizure of the means used exclusively or predominantly for infringement and
of the infringing products and the packaging thereof.
"(3) The court may rule, at the request of the proprietor, that the infringing nature of the
means, materials, products and packaging seized be removed - in particular by removing the
trademark - or, where this is not possible, that they be destroyed.  In well-founded cases, the
court may order, in place of destruction, that the means and materials seized be auctioned
according to the rules of court execution procedure; in such case, the court shall decide how the
sum obtained is to be used.IP/C/W/88
Page 33
"(4) Seizure of the means and materials used for trademark infringement and of the
infringing products and packaging shall be admi ssible even though they are not in the ownership
of the infringer if the proprietor knew or ha d reasonable grounds to know of the trademark
infringement."
As Article 120 of the Trademark Act has amended other intellectual property laws accordingly,
the same remedies are available, mutatis mutandis , under Article 52 of the Copyright Act, Article 11 of
the Industrial Design Decree, and Article 35 of the Patent Act.
23. Article 47 provides that WTO Members may authorize judges and administrative officials to
order infringers to identify for right holders third parties involved in the production and distribution of
infringing goods or services and their channels of di stribution.  Please describe any authority judges
and administrative officials have under the laws of H ungary to order infringers to identify for right
holders third parties involved in the production and distribution of infringing goods or services and their
channels of distribution and describe the circumstances in which this authority would be exercised.Please cite the legal authorities providing for such remedies.
Under Article 27(2) of the Trademark Act the pr oprietor may, depending on the circumstances
of the case, demand that the infringer give information on the identity of third persons involved in the
production and distribution of the infringing goods and in the supply of infringing services and of their
channels of distribution.
As Article 120 of the Trademark Act has amended other intellectual property laws accordingly,
the same provision is contained by Article 52(1) of the Copyright Act, Article 11 of the Industrial Design
Decree, and Article 35 of the Patent Act.
See also the replies of Hungary to questions 5 and 6 of the Checklist of Issues on Enforcement.
6
24. Article 48.2 permits WTO Members to exempt public  authorities and officials from liability from
remedies only where their actions were taken or intended in good faith in carrying out their
responsibilities under the law.  Please explain any exemption provided public authorities and officials
from liability for abuse of enforcement procedures, de scribe the circumstances in which such limitations
would not apply, and cite the legal authorities granting such exemptions.
Under Article 349 of the Civil Code, liability for damage caused in the sphere of state
administration can only be established if the damage could not be prevented by ordinary legal remedies,
or the damaged person has resorted to ordinary legal remedies appropriate for preventing damages.
These rules also apply to liability for damages caused within the sphere of authority of courts
and prosecutor’s offices.
See also the replies of Hungary to question 7 of the Checklist of Issues on Enforcement.6
                                                     
6 IP/N/6/HUN/1.IP/C/W/88
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Provisional Measures
25. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to
order prompt and effective provisional remedies to prevent an infringement of any intellectual property
right.  With respect to each intellectual property right identified in Article 1.2 of the TRIPS Agreement,
please identify the provisional measures available to protect intellectual property rights.  Please cite the
relevant legal authority establishing those provisional remedies.
Under 156 of the Code of Civil Procedure, the court may order by a provisional measure, on
request, compliance with the action claim (counterclaim) or with any special claim contained in the
request for a provisional measure.  A provisional measure can be obtained if it is necessary to prevent
imminent damage, or to preserve circumstances giving rise to litigation or to protect the petitioner's
rights deserving special appreciation.  Furthermore,  the court should be satisfied that the drawbacks
caused by the measure do not outweigh the benefits attainable by it.  The court may subject the ordering
of a provisional measure to a security to be provided by the applicant.  The facts on which the request isbased must be made likely.  The request for a provisional measure can only be submitted after the
statement of claim has been filed.  The court, however, may decide on the provisional measure even
before the first trial.  The court is required to decide on a provisional measure promptly, but prior to that,
it has to hear the parties personally or allow them to present their cases in writing.  The hearing of the
parties may only be omitted if the provisional measure is urgently needed, or if the party concerned doesnot comply with the time limit or period fixed for the hearing.  Although an appeal may be lodged
against the court’s decision ordering a provisional measure, it does not necessarily have a suspensive
(delaying) effect on the execution of the measure, i.e. it can be executed in advance.
These provisions of the Code of Civil Procedure (as amended by Act LX of 1995) meet the
requirements of Article 50 of the TRIPS Agreement.
Special provisions on provisional measures applicable in the case of infringement have been
included in Hungarian industrial property and copyright laws by the Trademark Act and are contained in
the Trademark Act itself.
Those provisions are of an interpretative nature in relation to the Code of Civil Procedure, and
are designed to reflect the specialties of intellectu al property cases so that they should enhance the
efficiency of enforcement.  They have introduced a statutory presumption in favor of intellectual
property rights holders that there is a need to protect a right "deserving special appreciation" (as is
required by the general rules of the Code of Civil Procedure), if the applicant certifies that the work,
invention, trademark or other subject matter is legally protected, and that he is entitled to that protection,
i.e. he is the owner, or the duly authorized licensee, of the intellectual property right in question.However, this presumption does not apply where six months have already elapsed form the beginning of
the infringement, or sixty days from the date on which the applicant became aware of the infringement
and the identity of the infringer.  (Nevertheless, in such a case a provisional measure can still be
obtained, but only under the general rules of the Code of  Civil Procedure, i.e. without the "help" of the
statutory presumption.) Furthermore, courts have been put under the obligation to decide on requests for
provisional measures within fifteen days, at the latest, counted from the day of submission of such a
request.
The relevant provisions are the following: Articles 95 (2)-(4) of the Trademark Act,
Articles 52 (3)-(5) of the Copyright Act, Articles 20 (3)-(5) of the Industrial Design Decree, Articles 104
(3)-(5) of the Patent Act.IP/C/W/88
Page 35
See also the replies of Hungary to question 10 of the Checklist of Issues on Enforcement.7
26. Articles 50.1 and 50.8 require that judicial and administrative authorities have the authority to
order prompt and effective provisional remedies to preserve relevant evidence in regard to an alleged
infringement.  Please identify the provisional measures available to preserve relevant evidence in regard
to an alleged infringement and cite the relevant legal authority.
Articles 207-211 of the Code of Civil Proce dure provide that, upon request of the party
concerned, preliminary production of evidence is admissible either before or during the action, if, among
others, it seems likely that evidence could not successfully be taken during the action or in a later stage
of the action, or it would entail considerable difficulties.  In urgent cases, the court may decide on the
preliminary production of evidence even without hearing the adverse party.  In cases of infringements of
intellectual property rights, courts may subject the ordering of preliminary production of evidence to
providing security [Article 95(6) of the Trademark Act, Article 52(7) of the Copyright Act, Article 20(7)
of the Industrial Design Decree, Article 104(7) of the Patent Act].
27. Articles 50.2 and 50.8 require Members to authorize judicial and administrative authorities to
adopt provisional measures inaudita altera parte.  With respect to each intellectual property right
identified in Article 1.2 of the TRIPS Agreement, please describe briefly the circumstances in which the
judicial and administrative authorities are empower ed to adopt provisional measures inaudita altera
parte and cite the relevant legal authority.
Under Article 156(4) of the Code of Civil Procedure a provisional measure may only be ordered
inaudita altera parte  if the measure is urgently needed, or if the party does not comply with the time
limit or period fixed for the hearing.
See also the reply of Hungary to question 11 of the Checklist of Issues on Enforcement.8
28. Articles 50.2 and 50.8 require that judicial authorities and administrative bodies be authorized
to grant provisional remedies when a delay is likely to cause "irreparable harm" to the right holder.
Please describe briefly what is required by the authorities identified in answers to questions 25, 26 and
27 to establish "irreparable harm" to the right holder.
Under 156(1) of the Code of Civil Procedure, the court may order a provisional measure, on
request, if it is necessary to prevent imminent damage, or to preserve circumstances giving rise tolitigation or to protect the petitioner(s rights deserving special appreciation and if the drawbacks caused
by the measure do not outweigh the benefits attainable by it.
See also the reply of Hungary to question 10 of the Checklist of Issues on Enforcement.
8
29. Articles 50.2 and 50.8 also require that judicial authorities and administrative bodies be
authorized to grant provisional remedies when there is a "demonstrable risk of evidence beingdestroyed".  Please describe briefly what factors are considered by the competent authorities in
determining when there is a "demonstrable risk of evidence being destroyed".
See the replies to questions 25 and 26.
                                                     
7 IP/N/6/HUN/1 .
8 IP/N/6/HUN/1.IP/C/W/88
Page 36
30. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized to
require an applicant to provide evidence to establish with a sufficient degree of certainty that the
applicant is the right holder and that infringement has occurred or is imminent.  With respect to each
intellectual property right defined in Article 1.2 of  the TRIPS Agreement, please describe the evidence
required by right holders to establish ownership.
In respect of registered industrial property rights (patents, utility models, industrial designs,
topographies of microelectronic semiconductor products, trademarks and geographical indications) the
Hungarian Patent Office - on request - certifies the rights of the owner by issuing a copy of the registered
data on payment of a fee.  (See e.g. Article 54(4) of the Patent Act, Article 47(4) of the Trademark Act.)
The copy of the registered data is a public (authentic) document mostly required by courts to
establish ownership in such procedures.
Taking into account the fact that registration of assignments or licenses of exploitation are not
mandatory under Hungarian law, the courts may also accept private documents (contracts) constitutingconclusive evidence submitted by the plaintiff to establish ownership.
For further details, please, see the replies to questions 25 and 26.
31. Articles 50.3 and 50.8 require that judicial and administrative authorities be authorized to
provide a security or equivalent assurance to protect the defendant.  With respect to each intellectual
property right identified in Article 1.2 of the TR IPS Agreement, please cite the legal authority
establishing a security or equivalent assurance.
Under Article156(1) of the Code of Civil Procedure, the court may subject the ordering of a
provisional measure to a security to be provided by the applicant.  Furthermore, in intellectual property
cases, the court may subject the ordering of preliminary production of evidence to providing security.
It is the court which, considering all relevant circumstances of the case, determines the sum of
the security.  For further details see the replies to questions 25 and 26.
32. Article 50.4 requires that parties be notified when provisional measures have been adopted
inaudita altera parte.  Please describe briefly the procedures followed by each authority able to adopt
such measures for notifying affected parties and state the time within which such notice must take place.
Under Article 156(2) of the Code of Civil Procedure, the request for a provisional measure can
only be submitted after the statement of claim has been filed.  The court, however, may decide on the
provisional measure even before the first hearing.
Article 156(4) of the Code states that the hearing of the parties may only be omitted if the
provisional measure is urgently needed or if the party does not comply with the time limit or period fixed
for the hearing.
Under Article 156(6), the court’s decision on a request for a provisional measure constitutes a
judge’s order against which an appeal may be lodged.
Under Article 219(2) of the Code of Civil Procedure, a decision must be put down in writing
within eight days from its passing.IP/C/W/88
Page 37
An order passed without hearing has to be communicated by way of service to the interested
party (Article 219(1)d.).
For further details see the replies to questions 25 and 26.
33. Article 50.4 also requires that defendants be afforded a review process to determine whether
provisional measures should be modified, confirmed, or revoked.  Please describe briefly the procedures
a defendant must follow to initiate review proceedi ngs in each of the authorities able to adopt such
measures and identify the period within which such proceedings must be initiated.
The time limit for appeal is fifteen days from the communication of a decision (Article 234 of
the Code of Civil Procedure).  The court may order that the decision concerning the provisional measure
be executed in advance irrespective of the appeal lodged.
The judge’s order on the provisional measure remains in force until it is repealed by the court at
the request of a party or a judgment is passed subsequently on the merits of the case (Article 156(5) of
the Code of Civil Procedure).
34. Article 50.5 requires that competent authorities be authorized to require applicants to supply
other information necessary for the identification of goods concerned by the authority that will execute
the provisional measures.  Please describe briefly what other information may be required by the
authorities and cite the legal authority establishing the basis for this supplemental information.
With regard to civil law remedies there are no special provisions, therefore the general rules are
applicable to the supply of information necessary for the identification of goods concerned.
In respect of customs administration proceedings, the legal authority is the Border Measures
Decree.
The application has to contain the description and relevant characteristics of the goods to
facilitate identification and the circumstances, data, documents that suggest that the infringement isprobable.
The place where the goods can be found, their place of destination, such detailed data as enable
the shipment, consignment or the package to be iden tified, the denomination of the importer, exporter or
the owner of the goods, the expected time and place of arrival or departure of the goods may be required
by customs authorities as supplemental information.
See the reply of Hungary to question 16 of the Checklist of Issues on Enforcement.
9
35. Articles 50.6 and 50.8 provide that if proceedings leading to a decision on the merits are not
initiated within a reasonable time, provisional remedies granted by competent authorities shall be
revoked or otherwise cease to have effect, at the request of the defendant.  Please identify the relevant
provisions in the law of Hungary authorizing the revocation or cessation of provisional measures ifreview proceedings are not initiated within a reasonable time and specify what constitutes a "reasonable
time period" to initiate proceedings.
Under Article 156 of the Code of Civil Procedure, the request for a provisional measure cannot
be filed before filing the statement of claim.
                                                     
9 IP/N/6/HUN/1.IP/C/W/88
Page 38
The order on the provisional measure remains in force until it is repealed by the court at the
request of a party, or a judgment is passed subsequently on the merits (Article 156(5) of the Code of
Civil Procedure).
36. Articles 50.7 and 50.8 provide that judicial and administrative authorities shall have the
authority to order the applicant to provide the defendant appropriate compensation for any injury
caused by the adoption of provisional measures wh en said measures are revoked, have lapsed, or when
it has been determined that there has been no infringement or threat of infringement.  Please describe
how the competent authorities determine "appropriate compensation".
The general rules of the Civil Code are applicable to an injury caused by the adoption of
provisional measures when those measures are revoked, have lapsed, or when it has been determined that
there has been no infringement.
The relevant rules of the Civil Code read as follows:
"Article 339(1) That person who causes damage to another person in contravention of law, shall
compensate for it.  He shall be relieved of liability if he proves that he has acted as it is
generally expectable in the given situation.
(2) A person liable for the damage may be partially relieved of his liability by court on the
basis of circumstances deserving exceptional appreciation.
"Article 340
(1) A damaged person shall act in order to prevent or mitigate the loss as it is generally
expectable in the given situation.  The part of the loss that derived from the failure of the
damaged person to perform this obligation, shall not be compensated for.
(2) Omission of all those for whose conduct the damaged person is responsible, shall be to
his charge.
"Article 344
(1) If the damages are caused jointly by two or more persons, they shall bear joint and
several liability towards the damaged person, while their liability towards one another
shall be divided in proportion to the imputability of their conduct.
(2) The damage shall be divided in equal proportions between/among the persons who
caused it if the imputability of their conduct cannot be ascertained.
(3) A court may omit to declare joint and several liability and may condemn the persons
having caused damage in proportion to their respective contributions, if:
(a) this does not risk compensation for damage and does not delay it significantly,
or
(b) the damaged person has contributed himself to the occurrence of the damage or
was in delay in the enforcement of his claim without any excusable reason.IP/C/W/88
Page 39
"Article 355
(1) The person liable for the damage shall restore the original state, and if it is not possible,
or if the damaged person does not wish so for a well-founded reason, he shall
compensate for the pecuniary and non-pecuniary damage of the damaged person.
(2) Damage shall be compensated for in cash, unless the circumstances justify
compensation in kind.  Compensation in kind may be especially justified if the object ofcompensation for damages is produced by the person causing the damage, too, or it is
otherwise at his disposal.
[...]
(4) Under the title of compensation for damages, the decrease in value of the property of the
damaged person and pecuniary advantage lost due to the circumstance having caused the
damage, as well as the indemnity or costs necessary for lessening or eliminating the
pecuniary and non-pecuniary damages sustained by the damaged person shall becompensated for.
"Article 359
(1) If the extent of damages cannot be calculated precisely - even if only in part - the person
liable for causing damages may be obliged by court to pay general compensation of a
sum enough for full material indemnification of the damaged person.
(2) There is no place for reclamation of general compensation under the pretext that the
extent of actual damage did not reach subsequently the sum of general compensation.
However, if the obligor pays annuity as general compensation, he may claim reduction
of the amount of the annuity or modification of the period of paying the annuity in
accordance with the change in conditions."
Special Requirements Related to Border Measures
37. Article 51 of the TRIPS Agreement requires that countries adopt procedures that enable right
holders to request suspension of the importation of counterfeit trademarked goods and pirated
copyrighted works.  Please identify the competent authority in Hungary authorized to accept
applications for a request to suspend release of suspected infringing goods and cite the relevant law orregulation governing such authority.
The competent authority in Hungary authorized to accept such applications is the customs office
where the import or export of illegal goods is expected to take place, or where the customs clearance of
such goods has been initiated, or, in the case of a so-called general application, it may be the National
Headquarters of the Customs and Finance Guard.  The relevant Acts and Decrees are the following:
- Act No. C of 1995 on Customs Law,  Customs Proceedings and Customs
Administration;
- Government Decree No. 45/1996. (III. 25.) Korm. on the Impl ementation of Act No. C
of 1995;
- the Trademark Act (for details, please, see the reply to question 1), in particular its
Article 28 authorizing right holders to claim - under the provisions of special legislationIP/C/W/88
Page 40
- measures by customs authorities to prevent infringing goods from entering into free
circulation on the domestic market;
- the Border Measures Decree (for details, please, see the reply to question 1).
38. Please describe the procedures a right holder must follow to obtain border protection by the
competent authorities, e.g., if there is a formal app lication that must be submitted to the competent
authority, judicial or administrative, and the inform ation required in the request for suspension and cite
the law or regulations providing such procedures.
Under the provisions of the Border Measures Decree, in order to prevent the internal entry into
free circulation (i.e. the importation), the export or re-exporting of the illegal (infringing) goods either a
specific or a general  application may be submitted to the competent customs authority.  The action of the
customs authority may be requested regarding specific illegal (infringing) goods or shipments in the case
of a specific application, whereas, in the case of a general application, the action may be required in
relation to a specified producer or country of origin for a period of up to six months.
The specific application must be submitted at the customs office where the import or export of
the illegal goods is expected to take place or where the customs clearance of such goods has been
initiated.
Specific applications - where the place of the customs clearance is unknown - and general
applications must be submitted to the National  Headquarters of the Customs and Finance Guard.
A written application by the right holder is required which must contain the following:
(a) the verification that the protection of the trade mark, or the geographical indication, or
of the copyright or neighboring rights in question exists in relation to the customs goods;
(b) a statement that the person is entitled to act against the infringement;
(c) that person’s request that the customs authority should take the appropriate measures to
place the illegal goods under direct customs supervision;
(d) the description and relevant characteristics of the customs goods to facilitate
identification, and the circumstances, data, documents which suggest that the
infringement is probable;
(e) the acknowledgment of the obligation to provide the security which is required by
Article 8 of the Decree;
(f) in the case of a general application, the period for which the observation is required.
The right holder must communicate the following to the customs authority, provided he is aware
of them:
(a) the place where the customs goods can be found or their place of destination;(b) such detailed data that enable the shipment , consignment or the package to be identified
(with special regard to the data concerning the packaging and value of the customs
goods and the transport vehicle);IP/C/W/88
Page 41
(c) the denomination of the importer, exporter or the owner of the customs goods;
(d) the expected time and place of arrival or departure of the customs goods;
(e) all information concerning the customs goods or those involved which may be of
assistance to the customs authority.
39. Please explain whether procedures, permissible under Article 51 of the TRIPS Agreement, are
available to stop the export of goods suspected of infringing copyrights and/or trademarks.
In customs administration proceedings, measures can, and have to, be taken against customs
goods and other goods in relation to which infringeme nt of the protection of trademarks or geographical
indications, or infringement of copyright or neighboring rights has been committed, even where such
goods are destined for exportation or re-exportation.
40. Article 52 of the TRIPS Agreement requires that  rights holders wishing to stop importation of
counterfeit trademarked goods or pirated copyrighted works present evidence to the competent
authorities that there is prima facie infringement of their trademark or copyright.  Please explain what
evidence will constitute prima facie infringement in Hungary.
As far as border measures are concerned, an infringement can be seen as prima facie
infringement, if the application contains such elements  that make the infringement appear probable to the
competent customs authority.
41. Article 52 also requires that the right holder provide a "sufficiently detailed description of the
goods" to be stopped.  Please explain what is required of the right holder in Hungary for a description
to be "sufficiently detailed".
The elements of the application must comply with the requirements set by Article 4 of the
Border Measures Decree (see the reply to question 38), otherwise the customs authority will reject the
application.
42. Article 52 requires that the competent authorities notify the right holder that his application is
accepted within a reasonable time.  Please explain within what period of time the competent authority
responds to a request for suspension of release of goods and, if the application is accepted, the length of
time during which enforcement action will be taken.
Under Article 5 of the Border Measures Decree, the customs authority has to take a decision on
the merits within five working days of the date when the application was  lodged.  If a specific
application has been lodged to request a measure in relation to customs goods which have been
submitted for customs clearance, the customs authority has to take its decision within five days, taking
into account the needs of the customs clearance proceeding.
On the basis of an accepted application, the customs authority places the customs goods under
direct customs supervision for ten working days ,  and the right holder is forthwith notified thereof.  This
deadline may be prolonged by ten working days in a justified case.
43. Article 53.1 requires that the competent authorities have the authority to secure from an
applicant a security or equivalent assurance sufficient to protect a defendant and to prevent abuse.
Please verify that the competent authorities id entified above are empowered to require security or
equivalent assurance and provide citations to the prov isions of law or regulation that grant them that
authority.IP/C/W/88
Page 42
Under Article 8 of the Border Measures Decree, the right holder must provide a security for the
customs authority in order to cover the costs of warehousing the customs goods which are placed under
customs supervision.  The security is also required of the applicant for the costs of destroying if the
customs goods are to be destroyed, and for the possible damages payable to the person submitting the
goods for customs clearance.
The amount of the security is 5% of the value of the customs goods if their value can be
established.  If their value cannot be established, the security is a monthly Ft 60.000 (approx. US$ 300)
for each application.  If a general application for a border measure cannot indicate the value of the
goods, and, at the same time, it is filed for a period of six months, the amount of security is as high as Ft
360.000 If the application specifies more countries of origin, or more than one type of goods, it
obviously entails the corresponding multiplication of the amount of Ft 60.000 (which is the basic amount
of security).
If the amount of the security does not cover the costs mentioned above, the right holder must pay
for the difference.
The customs authority, taking into account the binding decision of the court on the merits of the
case, must account for the amount provided by the appl icant as a security in accordance with the rules of
Act C of 1995 on Customs Law, Customs Proceedings and Customs Administration.
44. Article 53.2 provides that the owner, importer, or consignee of goods involving industrial
designs, patents, layout-designs or undisclosed information that have been suspended by customs
authorities should be able, in certain circumstances, to have such goods released on payment of security
sufficient to protect the right holder from infringe ment.  Please identify what forms of intellectual
property, if any, are subject to provisions of Article 53.2 and cite to the relevant provisions of law or
regulations.
The Border Measures Decree concerns only measures to be taken against customs goods and
other goods in relation to which infringement of the protection of trademarks or geographical
indications, or infringement of copyright or neighboring rights has been committed.  Therefore the goods
mentioned in Article 53.2 of the TRIPS Agreement are not covered by the Decree at all.
45. Article 54 requires that the importer and the applicant be notified promptly of the suspension or
release of goods.  Please specify the period within which the competent authority to issue a notice that
the release of goods has been suspended.
The general rule is to promptly (forthwith) notify the parties in all cases.
46. Article 55 makes it clear that the right holder applying for suspension of infringing goods must
initiate a proceeding on the merits in an appropriate forum within a reasonable period of time or thegoods will be released.  Please identify the fora in which an applicant/party may initiate proceedings on
the merits that will allow customs authorities to hold the goods beyond ten working days.
The right holder must prove within ten working days of receiving the notification on the
suspension of infringing goods that he has taken an action for infringement and has applied for a
provisional measure to be ordered by the  court.
If the right holder makes a statement that he does not wish to exercise his rights, or fails to prove
that he has applied for a provisional measure, or if the application for such a measure has been rejectedby the court, the customs authority must forthwith notify the person submitting the goods to customs
clearance, and, following this, the customs goods must be treated in accordance with the application ofIP/C/W/88
Page 43
this latter person.  At the same time, the customs authority notifies the right holder of putting an end to
the direct customs supervision.
47. Article 55 provides that a review is to take pla ce within a reasonable time at the request of the
defending party to determine if the suspension measures should be modified, revoked or confirmed
pending the outcome of the proceeding on the merits.  Please identify the forum that is authorized to
conduct such a review and describe the procedure and cite the applicable law or regulations.
Under Articles 5 and 6 of the Border Measures Decree, the right holder must prove within ten
working days of receiving the notification that he has taken an action for infringement and has applied
for a provisional to be ordered by the  court.  The court decides, within fifteen working days of receiving
the application for an interim measure, at the latest, whether to maintain the suspension as a seizure or
release the goods.
(On provisional measures see the replies to questions 25-36.)
48. Article 56 requires that the authorities be able to require the applicant to compensate the
defending party for any injury caused if the detention of goods was unfounded.  Please identify the
authorities that can order the applicant to pay the im porter, consignee or owner compensation for injury
caused by wrongful detention or through the detention of goods released pursuant to Article 55 and cite
to the applicable law or regulations.
The importer, consignee or owner might lodge an  application for compensation for injury caused
by wrongful detention or through the detention pursuant to Article 55 of the TRIPS Agreement to the
competent court, in a separate procedure.  The reply to question 36 applies  mutatis mutandis  to such a
case.
49. Article 57 requires that the competent authorities be able to authorize the right holder to inspect
the detained goods in order to substantiate the claims.  Please explain how right holders are provided anopportunity to inspect suspect goods that have been detained by customs authorities.
The customs authority, observing the provisions on the protection of personal data, has to
provide information, at the request of the right holder, on the person applying for the customs clearance,
on the name and address of the consignee of the customs goods, and it also has to ensure that the right
holder may observe and examine the customs goods in order that the right holder can exercise his rights.For the purpose of accelerating customs proceedings, the customs authority may take samples from the
customs goods.
50. Article 57 also requires that, where the decision on the merits favors the right holder, the
competent authorities also may be given authority to give the right holder information regarding the
importer, consignee or consignor.  If competen t authorities in Hungary can provide information
regarding the importer, consignee or consignor to the right holder, please explain how information
regarding names and addresses of consignors, importers and consignees and quantities of goods are
provided to the applicant after a positive decision of infringement is made, e.g., authorities
automatically providing information or by submissi on of a written request from the right holder, etc.
Please cite to the law or regulations providing such authority.
The customs authority, observing the provisions on the protection of data, has to provide
information, at the request of the right holder (which should be made in writing), on the person applying
for the customs clearance, and on the name and address of the consignee of the customs goods.
In respect of the protection of personal data, Act No. LXIII of 1992 is also applicable.IP/C/W/88
Page 44
51. Article 58 specifies procedures to be followed where the competent authorities can act ex officio.
Please explain whether the competent authorities in  Hungary are empowered to act ex officio and, if so,
please identify the intellectual property areas subject to ex officio action.
Basically, the competent authorities can act ex officio  in criminal and in administrative cases.  In
civil law cases, ex officio  action is not possible.
The Border Measures Decree relates to trademarks, geographical indication, copyright and
neighboring rights.  It provides for measures against infringements of these intellectual property rights.
The customs authority can take measures ex officio , namely, it can place the customs goods
under direct customs supervision, or it can decide to place the customs goods to a bonded warehouse if it
obtains such data through its other proceedings, that make it probable that the goods submitted for
customs clearance are infringing goods.
If, in a proceeding initiated ex officio , the person of the right holder cannot be established, the
customs authority must contact the Hungarian Patent Office in the case of an infringement of theprotection of trademarks or geographical indications, or the relevant collective administration
organization in the case of an infringement of copyright or neighboring rights.
The Hungarian Patent Office, on the basis of the available data, must inform the customs
authority of the identity of the right holder within five days.
If the collecting administration organization does not provide information on the identity of the
right holder within five days, or does not wish to act against the infringement, the customs authority will
put an end to the direct customs supervision, and proceeds with the customs clearance in accordance
with the application of the person submitting the goods.
52. Article 59 identifies the remedies that are to be available, including destruction or disposal of
infringing goods outside the stream of commerce.  Please explain what the law in Hungary permits
regarding the disposition of infringing goods, i.e., doe s the law allow for destruction, disposal or both.
Please cite to the law or regulations providing such authority.
Hungarian law permits both destruction and non-commercial disposal of goods found to be
infringing.  For details see the reply to question 22.
53. Please identify:
(a) the competent authority that decides the disposition of the goods, i.e., whether the goods
will be destroyed or disposed of outside the stream of commerce; and
(b) the competent authority that carries out the destruction or disposal of the goods.
(a) The competent Court.
(b) The competent authority which was involved in the case previously (the customs
authority, the police, etc.), or the officers responsible for the execution of judgments
("bailiffs").IP/C/W/88
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54. Article 60 permits Members to exclude from the provisions for border enforcement small
quantities of goods of a non-commercial nature carried by passengers or sent in small consignments.
Please describe what constitutes a de minimis import  that is excluded from the border measures under
the law of Hungary.
Non commercial traffic: importation or exportat ion of customs goods, goods not constituting a
commercial quantity, imported by, arriving for, exported or sent out by a natural person, to an individualor total value not exceeding the forint (Ft) amount defined, or below the value limit.
Alcoholic beverages: 1 litre of spirits;
  1 litre of wine;
 5 litres of beer.
Tobacco products: 500 cigarettes;
100 cigars; or
   100 g of tobacco.
Coffee, tea, cocoa and all spice herbs and their mixtures thereof: 1 kilo each, except for:
seasoning paprika and the mixture thereof.
Other goods: up to the value of Ft 500/item 10 per type;
up to the value of Ft 2.000/item 5 per type;
up to the value of Ft 5.000/item 2 per type;over the value of Ft 5.000/item 1 per type.
Motor vehicle: 1/year/family.
Criminal Procedures
55. Article 61 of the TRIPS Agreement requires that Members have criminal procedures and
penalties, including imprisonment and/or monetary fines sufficient to act as a deterrent, at least forcases of wilful trademark counterfeiting and copyright infringement on a commercial scale.  Please
describe the provisions in the law of Hungary that fulfill that obligation and provide legal citations.
Article 329/A of the Criminal Code (see the repl y to question 1) qualifies violation of authors'
rights and neighboring rights as a crime in the following manner:
"(1) That person causing financial prejudice by violating the right of the author on his
literary, scientific or artistic work, or that of the performing artist on his performance, or that of
the producer on his sound recording, or that of the radio or television broadcaster on his
program, shall be deemed to commit a misdemeanor, and shall be imprisoned up to two years,
punished to do work  for the benefit of the public, or fined.
"(2) The penalty for a felony shall be imprisonment up to three years, if the violation of
authors' rights and neighboring rights:
(a) causes considerable financial prejudice (over Ft 2.000.000);
(b) is committed in a businesslike manner.IP/C/W/88
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"(3) The penalty shall be imprisonment up to 5 years, if the violation of authors' rights and
neighboring rights is committed by causing particularly great financial prejudice (over
Ft 6.000.000).
"(4) That person, who commits the violation of authors' and neighboring rights recklessly,
shall be punished for a misdemeanor with imprisonment up to one year, or with work to be done
for the benefit of the public or with fine."
These provisions of the Criminal Code entered into force on May 15, 1993.
Furthermore, under Article 329 of Criminal Code, an infringement of rights to intellectual
creations is committed when a person makes the false impression that he owns the intellectual creation,invention, innovation or industrial design of anot her person, and causes thereby pecuniary disadvantage
to the entitled party, or, misusing his job at an economic organization, makes the utilization or assertion
of an intellectual creation, invention, innovation or i ndustrial design of another person dependent on his
being given a share in the fee derived, or in the profit or gains originating therefrom.  This sort ofinfringement is a felony and is punishable with imprisonment up to three years.
As a result of an amendment to the Criminal Code in 1994, false indication of goods also
amounts to a crime, which can be punished by imprisonment up to 3 years.
56. Article 61 also requires that remedies in appropriate 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 offense.  Please explain the provisions in the law of Hungary that provide forsuch remedies, describe the circumstances in which those remedies would be imposed and provide legal
citations.
Under the Criminal Code, seizure and forfeiture (confiscation) is possible in all cases.The basic rules are the following: The property must be confiscated which has been used or
designed as an instrument for the perpetration of a crime, if it is owned by the perpetrator, and also
otherwise, if its possession endangers public security; or which came into being through the perpetration
of a crime; or which has been received by the perpetrator of a crime from the owner or from another
person with the owner’s consent, in return for the perpetration.  That printed press material in whichcrime is realized must also be confiscated.  In cases defined by the law, that property must be confiscated
in respect of which the crime has been perpetrated, or which was the object of a given pecuniary
advantage.
In the case of violation of authors' rights and neighboring rights, the tangible property owned by
the offender in respect of which the offense has been committed, must be confiscated.  Confiscation isadmissible even when the tangible property is not owned by the offender, but the owner has previously
been aware of the commission of the offense (Article 329/A (5) of the Criminal Code).
57. Article 61 also indicates that Members may provide for criminal procedures and penalties in
cases of wilful infringement of other forms of intellectual property.  Please describe any provisions in thelaw of Hungary that provide for such procedures and remedies and provide legal citations.
Under Article 296 of the Criminal Code false indication of goods is a crime: the person who
markets goods of considerable quantity - without the consent of a competitor - with such characteristic
external appearance, packaging or name from which the competitor or his goods having characteristic,
features can be recognized, commits a felony, and is punishable by imprisonment up to three years.
Furthermore, deception of consumers is committed when the person who - in the interest of increasingIP/C/W/88
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the marketability of goods - states before large publicity untrue facts in a way suitable for deception in
respect of essential features of the goods, or gives information suitable for deception about an essential
feature of the goods.  It is a misdemeanor and punishable by imprisonment up to two years, labor in the
public interest or a fine.  For the purposes of applying these provisions the following qualify as essential
features of goods: their composition, usability, their influence on health or environment, their treatment,
origin, whether they meet legal requirements, standards or habitual requirements for such goods, as wellas if the utilization of the goods requires the realization of conditions essentially differing from habitual
ones.
58. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for wilful
trademark counterfeiting and copyright piracy.  Please explain how the penalties provided under the
laws of Hungary comply with that obligation.
See the replies to questions 55-57.