RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/ALB/49
5 October 1999
(99-4151)
Working Party on the
Accession of AlbaniaOriginal:  English
ACCESSION OF ALBANIA
Memorandum on TRIPS-Related Questions
The following information has been received from the Ministry of Economic Co-operation
and Trade of the Republic of Albania, with the request that it be circulated to Working Party
members.
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Additional Legislative TextsFrom the responses that the Government of Albania has provided to the most recent series of
Additional Questions and Replies, dated 20 August 1999 (WT/ACC/ALB/39/Add.1), it appearsthat there are additional pieces of legislation th at Albania either is in the process of drafting or
intends to draft.
Accordingly, the Members look forward to review ing this additional legislation as part of
Albania's accession package for conforming with the TRIPS Agreement.  Particularamendments or laws will be referenced below, as appropriate.
2. Substantive standards of protection(a) Copyright and related rightsRestoration of rights in pre-existing worksIn WT/ACC/ALB/36, dated 30 March 1999, the Government of Albania states that "the works
of intellectual property created before this law was approved, are used according to the
dispositions determined by this law on conditio n that the economic rights be realized after the
proposed changes have come into power."  The meaning of the statement is not clear.
In addition, in WT/ACC/ALB/39/Add.1, question 21, the Government of Albania indicates that
it is in the process of preparing an amendment to the law on Copyright to provide explicit
provisions providing protection for pre-existing works that may have fallen into the public
domain prior to the date the law came into force, consistent with its obligations under Article 18of Berne.
We would appreciate receiving a copy of this draft amendment as soon as practicable.Please describe in detail what works that were not subject to copyright protection prior to
enactment of the law will receive protection and what conditions, if any, must be met for a work
to receive that protection.WT/ACC/ALB/49
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Please describe in detail what phonograms will have protection restored in accordance with
Article 14.6 and what conditions, if any, must be met for work to receive that protection.
Rental rights
Article 5 of the Albanian Copyright Law provides that "The author of an audio-visual work, or
any other works like phonograms, computer programs, data base and of any other work which
is read by apparatus, has the exclusive right to allow giving on lease or lending of his work".
Does this mean that the author can prevent the rental of individual copies of his work after the
individual copies have been sold or otherwise transferred to other parties?
If not, please explain how Albania provides copyright owners with exclusive rental rights as is
required by 11 of the TRIPs Agreement.
Similarly, WT/ACC/ALB/36 states that no one can lease or loan a phonogram.
Does this mean that the phonogram producer can prevent the rental of individual copies of his
phonogram after the individual copies have been sold or otherwise transferred to other parties?
If not, please explain how Albania provides phonogram producers with exclusive rental rights
as is required by 14.4 of the TRIPs Agreement.
(b) TrademarksProtection of Well-Known Marks
Does the amendment of the trademark law that provides for enforcement of well-known marks
that are not registered in Albania provide any guidance for determining what is a well-known
mark?  If not, what will guide judges in determining whether a particular mark is well known?
Under Article 93 of the Law on Industrial Property, are both registered trademarks and well-
known trademarks protected against the later in time registration of a geographical indication.
If not, how are trademark rights under Article 16.1 assured under Albania's laws?
Example: If company A had registered a term as its trademark in Albania or if that trademark
had become well known in Albania by 1 January 1999, and someone sought on 1 August 1999,
to register the same term as a geographical indica tion, would they be able to do so or would the
request to register the term as a geographical indication be refused because it would beconfusingly similar to the already registered or  well known trademark?  The principle involved
is referred to as “first in time, first in right.”  The reverse would be true under Albania’s law,
i.e., registration of a trademark would be refused if it used a term already recognized as a
geographical indication.  Because both trademar ks and geographical indications are indications
of source the first in time, first in right principle should apply to both.
Reply:
Article 24.5 of the TRIPS Agreement prohibits the invalidation of a trademark and does not
impede the right to use it, if a geographical indication is registered some time in the future. EvenArticle 93 of the Law on Industrial Property and Arti cles 13 and 14 of the law "On Some Changes and
Supplements on the law on Industrial Property" that deal with geographical indications, do not impose
sanctions in such cases.WT/ACC/ALB/49
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Nevertheless, according to Article 83 of the Law on Industrial Property, the owner of a
registered trademark or well-known trademark cannot impede a third party to register a geographical
indication in the future, if this one is in compliance with Article 93 of the Law on Industrial Property.
Finally, Albanian Law foresees no relevance between a registered trademark or a well-known
trademark and geographical indications.
(e) Patents
Protection for plant varietiesPlease describe in detail the way in which plant varieties are protected in Albania, as required
by Article 27.3(b) of the TRIPs Agreement, and provide citations to the relevant legislation.
Compulsory LicensingPlease describe in detail the way in which the obligations of Article 31 of the TRIPs Agreement
are met with respect to any compulsory license that might be granted under Articles 39 or 40 of
the Law on Industrial Property.
Undisclosed InformationWT/ACC/ALB/36 indicates that Article 49 of Al bania's Law on Competition permits a former
employee or other party to a confidential relationship with the party in control of undisclosed
information to disclose that information two years after the employment of confidential
relationship has ended.  This is in contrast to the provision of the TRIPs Agreement, Article
39.2, which provides for an unlimited term of protection so long as the information meets the
conditions established in that provision.
Please explain how Article 49 of the Law on Competition complies with Article 39.2 of the
TRIPs Agreement.
In addition, the most recent series of questions/responses provides some detail and citation to
legislative authority for the availability of injunctive relief with regard to industrial property;
but does not seem to explicitly include protections on trade secrets or undisclosed information.
Can Albania provide additional information?Data Protection
Please explain if data submitted to obta in marketing approval of pharmaceutical and
agricultural chemical products can be relied upon by other applicants seeking approval for
products shown to be the bio-equivalent of the product of the first applicant.  If that is possible,
please describe in detail under what circumstances.
Follow up: Do the Albanian authorities rely on data submitted by the first applicant to approve
products of later applicants?  The Albanian respon se seems to indicate that that is the case in
relation to agricultural chemicals.  That would not be consistent with Article 39.3 which
requires that the first applicant’s data be protected against “unfair commercial use” which
includes reliance, within 5 years of approval of  the first applicant’s product, by authorities on
that data to approve later products.WT/ACC/ALB/49
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Reply:
The registration of agricultural and pharmaceutical products is carried out according to the
relevant legislation. The registration of plant protection products is done in accordance with the Law
on Plant Protection Services, No. 7662, dated 19 January 1993 and the Decision of the Council ofMinisters, No. 584, dated 6 December 1993, "For the Approval of the Regulation for Pesticides Used
in Agriculture" according to which, each product, despite the bio-equivalence, must equally undergo
registration procedures.  Therefore, each applicant,  in order to obtain the marketing right, must
register the product by submitting the registration file with its original data. The duration of the
registration lasts 10 years.  All applicants for registration are approved if the criteria are met.
The duration of the registration for pharmaceutical products lasts 5 years.  Each
pharmaceutical product, despite the bio-equivalence, must equally undergo the registration procedure.
Each applicant, in order to obtain the marketing right, must register its product by submitting the
registration file including its original data.  All applicants for registration are approved if the criteria
are met.
The registration file for the agricultural and pharmaceutical products registered through the
above mentioned procedures, remain confidential. Their data are only disclosed to the registration
commission members.
Enforcement
InjunctionsPlease indicate under what circumstances injuncti ons are available in relation to copyright and
neighbouring rights infringement and to misappropriation of undisclosed information and citeto the relevant legal authority.
DamagesPlease indicate under what circumstances damage s are available in relation to copyright and
neighbouring rights infringement and to misappropriation of undisclosed information and cite
to the relevant legal authority.  How is the amount of damages determined.
Ex parte searchesPrevious comments have cited only provisions in Albanian law that say "the court may re-
establish the situation that existed before the in fringement .... and proceed with an effective
seizure. etc."
Does Albanian law permit ex-parte searches and seizures, i.e., in appropriate cases without
notification to the accused party?
Reply:
Albanian Laws permit provisional measures without notification to the accused party.
Articles 42, 70 and 89 of the Law on "Industrial Property" confer to the owner of a patent, industrial
design or trademark, the right to address the court for provisional measures, if the right holder provesan imminent infringement of his intellectual property rights. The court shall grant an injunction for
prompt provisional measures to stop the infringement.WT/ACC/ALB/49
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Concerning seizure procedures, Article 11 of the Law "On Some Changes and Supplements
on the Law on Industrial Property", which is added as Article 89.3 to the Law on Industrial Property,
states: "in addition to the measures specified in paragraph 2(a) of Article 89 (the court will award
compensation for the right infringement and expens es including the legal costs), the Court may re-
establish the situation that existed before the infringement and to stop infringing actions, to proceedwith an effective seizure of the goods and, when ne cessary, to destroy illegally used marks, tools that
could be used to manufacture the goods and the goods themselves in absence of possibility to remove
any illegally mark from such goods".
In Point 20.1 of the Implementing Provisions of the Customs Code it is stated: "Where the
customs authorities is satisfied, after consulting the applicant where necessary, those goods or part of
goods referred to in paragraph 1(a) and (b) of Point 119, correspond to the description of thecounterfeit or pirated goods contained in the decision of the General Directorate of Customs, they
suspend the release of the goods or seize the goods depending on the situation."
Such measures are not included in the Copyright Law, but they are referred to, in the
forthcoming amendments to this Law as follows:
To prevent an infringement of any intellectu al property right from occurring and to prevent
the entry of pirated goods into the commercial channels, including imported goods  immediately after
customs clearance, and to preserve relevant evidence in regard to the alleged infringement, the
judicial authorities shall have the authority to order prompt and effective provisional measures suchas: confiscation or seizure of the goods – cause of the infringement; the suspension of import and
export procedures for such goods; the sequestration or seizure by the customs authorities in charge of
the goods undergoing customs procedures.
The judicial authorities shall have the authority to adopt provisional measures inaudita altera
parte where appropriate, in particular when any delay is likely to cause irreparable harm to the right
holder, or where there is a demonstrable risk of evidence being destroyed. The judicial authorities
shall have the authority to require the applicant any reasonably available evidence to prove that his
right is being infringed and to order the applicant at the same time to provide monetary assurance,
sufficient to protect the defendant in case of abuse. The defendant shall be given notice without delay,
after the execution of the measures at the latest, which upon request, may have a review whether the
provisional measures shall be modified, revoked or confirmed.
Many Articles of the Criminal Procedural Code, e.g., Articles 202, 205.3, 207, 298, 300 etc.,
refer to injunctions for inspections of persons or places when there exists sufficient reasons  to think
that real evidence of criminal offence or objects belonging to criminal offence may disappear or are
hidden. The evidence and objects connected with the criminal offence are sequestrated in compliancewith the relevant provisions of Law.
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