WORLD TRADE  
ORGANIZATION  IP/Q/TUN/1 
IP/Q2/TUN/1 
IP/Q3/TUN/1 
IP/Q4/TUN/1 
2 June 2004 
 
 (04-2330) 
Council for Trade-Related Aspects of Intellectual Property Rights Original:   French 
 
  
REVIEW OF LEGISLATION 
 
TUNISIA
1 
 
  This document reproduces the introductory st atement by the delegation of Tunisia, the 
questions addressed to it and the responses given in connection with the review of legislation 
undertaken at the Council meeting of 27 and 28 November 2001.
2 
 
_______________ 
 
 
I. INTRODUCTORY STATEMENT 
 It is a privilege and an honour for me to address the Council for TRIPS at this important 
meeting to review the legislation of several WTO Members, including Tunisia.   I first of all wish to assure you of the importance that my country attaches to this review.  The presence today of a major Tunisian delegation b ears witness to Tunisi a's commitment to the 
multilateral trading system and to its rules. 
 
 My thanks go to all Member delegations whose attendance at this TRIPS Council meeting 
demonstrates their interest in my country's legislation in this area.  I also thank those that have posed 
highly relevant questions, to which I trust th at we have provided satisfactory replies. 
 
 We apologize to those delegations whose questi ons have not been answered in full and assure 
them that comprehensive responses will be given to them as rapidly as possible.   Tunisia has a rich history in the sphere of protection of intellectual property rights.   The protection of industrial property rights in Tunisia goes as far back as the Paris Convention 
of 20 March 1883, of which Tunisia is a founding memb er along with several other countries.  This 
legislation lays down inter alia  the general rules governing the protection of patents, trademarks, 
service marks and industrial designs.   As regards copyright, it should be recalled that Tunisia is among the 10 countries that 
established the Berne Convention of 1886 and that it signed the Universal Copyright Convention in 
1969 and approved the Brazzaville Recommendation of  1963 on the Safeguarding of Folklore. 
                                                     
 
1 For the relevant laws and regulations notified by Tunisia under Article 63.2 of the TRIPS Agreement, 
please refer to documents IP/N/1/TUN/1;  IP/N/1/TUN/2 a nd Add.1;  IP/N/1/TUN/D/1 to 3;  IP/N/1/TUN/E/1 to 
3;  IP/N/1/TUN/G/1;  IP/N/1/TUN/L/1 to 3;  IP/N/1/TUN/P/1 to 6;  IP/N/1/TUN/T/1 to 3. 
2 The record of the meeting was circulated in document IP/C/M/34. IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 2 
 
   A series of domestic laws has been enacted, fo rming a significant corpus of legislation for the 
protection of copyright.  The latest law was pa ssed on 24 February 1994 and constitutes a turning 
point in the history of copyright protection. 
 
 Indeed, in addition to the traditional areas cove red by copyright, namely cinematographic, 
literary, musical and photographic works, the scope of protection has been extended to software. 
  This law also grants authors the exclusive ri ght to make use of their works and provides for 
preventive and corrective measures, ranging from fin es to imprisonment, in the event of infringement. 
  It already protects the various literary and artistic property rights covered by the TRIPS 
Agreement and guarantees respect for the f undamental principle of national treatment. 
 
 The law has also led to the establishment of a collective copyright management system.  The 
first autonomous Tunisian institution representing the interests of Tunisian and foreign authors was 
created in 1968.  Known as the Tunisian Society of Authors and Composers (SODACT), it replaced the African Copyright Office and was replaced in tu rn by the Tunisian Copy right Protection Agency 
(OTPDA) in February 1994.  
 The Agency immediately drew up a plan of  action to ensure greater effectiveness and 
protection of copyright by developing cooperati on programmes and concluding mutual representation 
agreements with a number of copyright agencies.   Intellectual property became more prominent in the business world and in international 
markets following the conclusion of the Agreement Establishing the World Trade Organization and 
the Agreement on Trade-Related Aspects of Intellectual Property Rights in particular. 
  In order to bring domestic legislation into lin e with the new Agreement, efforts have been 
made to meet Tunisia's commitments in this area.  
 A draft law is now before the Chamber of Depu ties, following endorsement of the text by the 
Council of Ministers and the Constitutional Council.   It will be adopted in the coming days. 
  The main objective of this instrument is on th e one hand to bring the provisions of the above-
mentioned Law No. 94-36 on copyright into line with  the provisions of the TRIPS Agreement and the 
WIPO Treaty of December 1996 and, on the other, to  incorporate in this special legislation provisions 
on related rights in accordance with the TRIPS Ag reement, the Rome Convention and the WIPO 
Treaty of December 1996.   I should now like to give a brief review of ne w legislation adopted by Tunisia pursuant to its 
commitments under the TRIPS Agreement. 
 
 As regards patent protection, Law No . 2000-84 of 24 August 2000 has extended the 
patentability of inventions to all fields of technol ogy, including medicines and agricultural chemicals. 
Inventions in such areas were previously exclud ed from patentability by most developing countries, 
including Tunisia. 
 
 This law has introduced innovations in terms of  the patent granting procedure, by providing 
for a substantive as well as a formal examination of patent applications. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 3 
 
  It has, moreover, established a system of contractual licences freely negotiated between the parties.  Where necessary to protect public health , compulsory licensing has also been introduced in 
accordance with the criteria laid down in the TRIPS Agreement. 
 
 Concerning the protection of layout-designs of  integrated circuits, Law No. 2001-20 of 
6 February 2001 is the first legal instrument in  Tunisia to protect creations and innovations in 
electronics and information technology, such as microchips and semi-conductor components.   As far as industrial designs are concerned, Law No. 2001-21 of 6 Februa ry 2001 contains new 
provisions regarding the form of protection afford ed when the same subject-matter presents both new 
technical and new ornamental features.   If the elements that constitute the novelty of the industrial design are inseparable from those 
of the invention, the subject-matter is protected in accordance with the provisions applicable to 
patents. 
  Law No. 2001-36 of 17 April 2001 protecting tr ademarks and service marks distinguishes 
between the filing and the registration phases by in troducing a system for opposing the registration of 
a mark.  
 This law further establishes the mandatory use of  a trademark or service mark.  All registered 
marks must henceforth be used for at least one  of the products or services designated in the 
registration.   It also prohibits the reproduction of a protected mark in any form whatsoever. 
 
 Lastly, domestic legislation protects geographi cal indications, which are governed in Tunisia 
by the law of 28 June 1999.   I should add that all of the above texts have provided for border measures, in order to prevent 
the importation of counterfeit goods and to combat the circulation of such goods within the country. 
 
 These measures are designed as incentives to bu ild a climate conducive to investment by 
foreign economic operators in Tunisia.   Likewise, to enforce intellectual property right s Tunisian legislation provides for judicial 
proceedings leading to civil and criminal  penalties in the event of infringement. 
  Thus, any infringement of intellectual property rights gives rise to civil action for compensation of the injury incurred.   The courts may order the confiscation and destruction of counterfeit goods and of the 
instruments used for their production. 
  Deliberate infringement of property rights in a mark, patent, industrial design or topography is 
punishable by a fine of up to 50,000 dinars.  
 The fine may be doubled in the event of a re peat offence, in addition to the penalty of 
imprisonment.   I should like to conclude by citing the main ac tivities carried out in Tunisia with a view to 
implementing the TRIPS Agreement. 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 4 
 
  A number of awareness-raising and extensi on activities have been undertaken among the 
different partners, namely the Judiciary, Customs, experts from the Ministry of Public Health and all 
economic actors concerned.  
 A graduate diploma in intellectual property w as introduced in the 1999-2000 academic year.  
The aim is to train a pool of intellectual property specialists every year.   To facilitate the filing of applications for patent s at the international level, and in view of its 
undertakings vis-à-vis  foreign partners, Tunisia acceded to the Patent Cooperation Treaty on 
10 September 2001. 
  It should be noted, moreover, that our country is now preparing for accession to the Budapest Treaty on the International Recognition of the Depos it of Microorganisms for the Purposes of Patent 
Procedure. 
 
 I would also emphasize that Tunisia is fully aware of the crucial role of a modern and 
effective corpus of intellectual property legi slation in the economic development process. 
  Tunisia has therefore done its utmost to deve lop a new legal framework in keeping with the 
provisions of the WTO TRIPS Agreement, and will make every effort to create all the conditions 
required to ensure full and effective implementa tion of this legislation in the regulatory and 
institutional spheres.  
II. RESPONSES TO QUESTIONS POSED BY CANADA 
1. Please describe how the enforcement obligations (Articles 41-46 of the TRIPS 
Agreement) have been implemented. 
 
Literary and artistic intellectual property (copyright and related rights) is protected in Tunisia 
by the following: 
 - International treaties legally ratified pursu ant to Article 32 of the Constitution, which 
take precedence over legislation (the Uruguay Round agreements (TRIPS), the Berne 
Convention, etc.); 
 
- ordinary law: general civil and crimin al legislation (Code of Obligations and 
Contracts, Commercial Code, Law on Competition and Prices, Code of Criminal 
Procedure, Customs Code, etc.); 
 
- special ( sui generis ) legislation, specifically Law No. 94-36 of 24 February 1994 on 
Literary and Artistic Property (copyright) and the relevant impl ementing provisions, 
in particular Decree No. 96-2230 of 11 November 1996 on the administrative and financial organization of the Tunisian Copyright Protection Agency and its operating 
procedures. 
 
It should be noted that a draft Law is currently before the Chamber of Deputies, following 
adoption of the text by the Council of Ministers a nd the Constitutional Council.  The main objective of 
this legislation is on the one hand to bring the provisions of the above-mentioned Law No. 94-36, 
relating to copyright, into line with the provisions of the TRIPS Agreement and the WIPO Treaty of 
December 1996, and on the other hand to incorporate in  this special legislation provisions on related 
rights in accordance with the TRIPS Agreement, the Rome Convention and the WIPO Treaty of 
December 1996.  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 5 
 
 
As regards the enforcement obligations under S ection 3 of the TRIPS Agreement, Tunisian 
legislation lays down procedures for the enforcem ent of copyright and related rights which allow 
effective action to be taken against any act in infringement of such rights.  
Article 42
 
  For example, in accordance with Article 42 of  the TRIPS Agreement on fair and equitable 
procedures:  
(1) The parties are authorized to arrange to be represented by inde pendent legal counsel.  
Indeed, "representation by an attorney-at-law is ma ndatory in proceedings before a Court of First 
Instance.  The chambers of the a ttorney-at-law shall be regarded as the elected domicile of its client 
for the level of jurisdiction for which the attorney is retained" (Article 68 of the Code of Civil and 
Commercial Procedure). 
 
(2) Defendants must receive timely written noti ce setting out the basis for the allegations.  
Article 70 of the Code of Civil and Commercial Pr ocedure states that "the writ of summons must 
specify the surnames, given names, occupations and addresses of the parties and the capacities in 
which they are acting, along with an account of th e facts in the matter …  It must also include a 
statement calling on the party on whom the writ is served to enter its pleadings in reply". 
 
(3) A procedure is specified in Tunisian legi slation for the identification and protection of 
confidential information, as follows:  
- Article 253 of the Criminal Code states that "Any person who discloses the contents 
of a letter, telegram or any document belongi ng to another party without authorization 
is liable to a prison sentence of three months ". 
 
- Article 254 of the Criminal Code states that "Any doctor, surgeon or other medical 
personnel, as well as any pharmacist, midwife or any other person  in whom secrets 
are vested by virtue of their status or profession  who reveals such secrets, except 
where required or permitted by law to repor t the matter, shall be liable to a prison 
sentence of six months and a fine  ...". 
 
The general regulations governing th e conduct of public-sector personnel  place civil servants 
under obligations of professional secrecy and disc retion; these general regulations include the 
following: 
 
- The General Regulations for State employees of local public authorities and 
administrative public bodies; 
 - the General Regulations for the employees of Boards, industrial and commercial 
public bodies, and companies whose capital is he ld directly or indirectly by the State 
or by public authorities; 
 
- the General Regulations for magistrates; 
 
- the General Regulations for customs staff; 
 
- the General Regulations for the pers onnel of the internal security forces. 
 
Furthermore, Article 168 of the Labour Code st ates that: "members of company consultative 
committees and staff representatives are bound by the obligation of professional secrecy with respect IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 6 
 
 to all information of a confiden tial nature coming into their posses sion while serving in that capacity, 
and to all matters relating to manufacturing processes.  In the event of a breach of this obligation they 
shall be liable to the penalties set down in Articles 138 and 254 of the Criminal Code". 
 
Article 138 of the Criminal Code states as follo ws: "in addition to a fine, any manager, clerk 
or worker of a factory who discloses or communicates a manufacturing secret shall be liable to a prison sentence of two years; attempts to do so are also punishable".  Article 43
 
 
Tunisian legislation, in accordance with Ar ticle 43 of the TRIPS Agreement on evidence, 
gives judicial authorities the power to order a party in proceedings, on a request to this effect from the 
opposing party, to produce the evidence lying in its control. 
 
Articles 213 to 223 of the Code of Civil and Commercial Procedure allow the presiding judge 
of the Court to issue rulings on request from either of the parties in the case, to ensure the protection 
of rights and interests which must not be left unpr otected. In cases of extreme urgency, judges may 
rule in their private homes on questions submitted to them.  
Enforcement of rulings issued in this manner is  not subject to the appending of the seal of the 
Court or " ad hoc " registration.  These formalities are completed later. 
 Rulings issued on request are exempted from th e registration procedure.  Such rulings are 
enforced without delay by process-serving notaries.  
A request for the withdrawal of a ruling does not suspend enforcement.  Article 101 of the 
same Code states that "if it is necessary to obtain an  expert’s report and the parties fail to agree on the 
selection of the expert, the expert shall be appointed by the judge". 
 
Article 44
 
 
 As regards Article 44 of the TRIPS Agreement on injunctions, under Tunisian legislation the 
judicial authorities have authority to issue various kinds of rulings, i.e. interim injunctions, payment 
injunctions and final or other judgments.  
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as 
necessary, the Court may ask the judge acting as ra pporteur to carry out any investigative actions, 
such as an inquiry, visit to the scen e, expert’s report, taking of pl eas of forgery, or any other action 
that will help to establish the truth".  
 The Court, during the hearing and in the presen ce of the parties, may set the date for the 
investigative action so ordered, specifying the date and time for the appearance of the parties in the 
chambers of the judge as rapporteur or at the location of the dispute or any other location. 
 Article 225 of that same Code states that "in an y event, the Court may require ex officio the 
participation of a third party in the proceedings wh ere it sees the presence of that party as essential for 
a correct appreciation of the matter at issue".  If it is necessary to arrange an expert’s report and the 
parties fail to agree on the selection of the e xpert, the expert is appointed by the judge. 
 
Emergency interim proceedings
: 
  Article 201 of the Code of Civil and Commercia l Procedure (CCCP) states as follows:  "In all 
situations of urgency , emergency interim rulings shall be issued, without prejudice to the main IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 7 
 
 action".  "Emergency interim rulings may be made  by the presiding judge of the Court of First 
Instance or a person with delegated authority from that judge, or a canton magistrate where that 
magistrate has jurisdiction under the law" (Art. 202 of the Code of Civil and Commercial Procedure). 
 
 "Provisional injunctions are enforceable 24 hour s after service, unless the judge has granted a 
period of grace."   Enforcement is carried out without a security unless the judge has ordered that a security be 
provided (Art. 207 of the Code of  Civil and Commercial Procedure). 
 
- Payment injunctions
 
 
  Article 59 of the Code of Civil and Criminal Procedure states that a payment 
injunction may be issued for any debt paymen t demand where the debt – irrespective of its 
nature – is for a fixed amount and is based on a contract. 
 
- Judgment  
 
  A judgment is not final if the decision is subject to appeal.  However, provisional 
enforcement of a judgment may always be ordered, with or without security, according to the 
circumstances of the case (A rticles 126 and 286 of the Code of Civil and Commercial 
Procedure). 
  Regarding the enforcement of a judgment:  
 The process-serving notary may: 
  - Enter the premises where the enforcement of  the judgment is to be carried out, place a 
guard at the door to prevent any misappropr iation of property, require the immediate 
attendance of the officer in charge of th e local police station or national guard, in 
whose presence the opening of the doors ... and furniture ... will take place ...; 
 
 - effect a distraint procedure on property of the party against which the ruling is given.   The Court may:  
 - Order the publication of the judgment, in pa rt or in full, at the expense of the party 
against which the ruling is given. 
  - Final judgment
 
   A final judgment ends the action by deciding the question at issue in the proceedings. 
 
Article 45
 
  With respect to the damages referred to in Ar ticle 45 of the TRIPS Agreement, the provisions 
of Articles 82 and 83 of the Code of Obligations  and Contracts (COC) require a party which has 
knowingly or deliberately caused material or mora l damage to another party to make good that 
damage, where it is established that this was the direct cause of the damage in question. 
  Along the same lines, Article 51 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property states that "any person who infri nges copyright as set out in this Law shall be 
required to pay the owner of such right damages fo r material and moral dama ge caused to the owner, IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 8 
 
 for the amount determined by the competent Cour t". The draft Law amending and adding to the said 
Law No. 94-36 extends these rights to include related rights.  Article 46
 
 
 With respect to the other remedies referred to  in Article 46 of the TRIPS Agreement, the 
following points should be noted:   Regarding precautionary measures
: 
 
 (1) The Code of Criminal Procedure gives the investigating magistrate , and in some cases 
criminal investigation police officers , the power to effect the following: 
 
• Searches  in all premises where objects may be located whose disclosure is deemed 
necessary in order to arrive at the truth. 
 
• Confiscation  of papers or chattels likely to cont ribute to establishing the truth of the 
matter ... 
 
• Expert’s reports  where required by the circumstances,  so that technical inspections can 
be carried out ... with experts to be given specific time limits for the submission of 
their reports ... 
 
• The Code of Civil and Commercial Procedure allows any person able to demonstrate a 
legitimate interest to ask the Court to or der the implementation of any measures to 
ensure the protection of rights and interests which must not be left unprotected ... 
  (2) Article 55 of Law No. 94-36 of 24 Febr uary 1994 on Literary and Artistic Property 
allows the competent Court to order ex officio or on request the confiscation or destruction of 
fraudulent copies and the temporary or definitive  closure of the establishment in which the 
infringement has been ascertained.   The owner of the establishment where the infri ngement has been committed is regarded as 
jointly and severally liable with the principal offender committing the infringement for making good 
the damage. 
 Article 47
 
  As regards the right of information referred to  in Article 47 of the TRIPS Agreement, in a 
criminal case the judicial authority and its auxilia ry entities are empowered to seek any information or 
clarification from the person charged regarding his or  her accomplices, the beneficiaries of the offence 
with which the defendant is charged, and the channe ls of distribution of the objects involved in the 
criminal offence.  The person charged does of course have the right to remain silent and may decline 
to answer any question, but the judge will take that  silence into account when considering the penalty 
to be imposed. 
 
 The information obtained from the criminal investigation can be used as supporting evidence 
for a civil action, both in the case of civil ac tions brought separately and for actions conducted 
concomitantly with the criminal proceedings . 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 9 
 
 Article 48
 
  Regarding the indemnification of the defenda nt referred to in Article 48 of the TRIPS 
Agreement, ordinary law (the Code of Obligations  and Contracts) generally  allows reparation for 
moral and material damage suffered, and a suit can be brought to seek reparation for the loss incurred 
following a wrongful and unjustified action.   Administration officials guilty of abuses and fa ults committed in the course of their duties are 
subject to administrative sanctions under the re gulations governing their conduct, and may be 
prosecuted in civil and even criminal proceedings , according to the nature and level of the fault 
committed.   Article 50-4 of the draft Law amending and a dding to Law 94-36 of 24 February 1994 states 
that "subject to completion of all customs formalitie s, the suspension of the release of the products 
shall be revoked automatically if the author, holder of related rights or his/her representative has failed 
to provide the customs authorities, within ten days fr om notification of the suspension of the release of 
the products, with proof of the following:  
• Lodgement of a security sufficient to cover its liability to the persons concerned in the 
event of it being subsequently established that  the products in question do not infringe 
the copyright or related rights .  The amount of the said security shall be set by the 
competent Court". 
  Similarly, Article 54 (new) of the new draft Law states as follows in its last paragraph:  "The records of the identification of the infringement and the confiscation measure shall be sent within 
seven days to the Public Prosecutor, who shall fo rward the documents to the competent Court for a 
ruling on the approval or revocation of the confiscati on within a time limit of no more than one month 
from the date on which the confiscation measure was carried out.   If the Court does not rule on the confiscation within the time limit specified, the confiscation measure shall be revoked automatically".  
Article 49
 
  As regards the administrative procedures referre d to in Article 49 of the TRIPS Agreement, 
Tunisian legislation does not provide for any admini strative procedures on the merits of a case.  Only 
the judicial authorities are author ized to deal with the matter. 
 
Article 50
 
  As regards the provisional measures referred to in Article 50 of the TRIPS Agreement 
(generic legislation), adequate provisional measures are provided for in Tunisian ordinary law through 
the mechanisms of provisional injunctions and rulings on request as described above. 
  The draft Law amending and adding to law No . 94-36 of 24 February 1994 on Literary and 
Artistic Property states in Article 54-1 that "the right holder or his/her representative may, as a 
preventive measure, on the basis of a ruling on request  issued by the presiding judge of the competent 
Court, arrange for a process-serving notary, assisted by  an expert, to carry out a detailed description, 
with or without physical confiscation, of the a lleged counterfeit products c onstituting an infringement 
of copyright or related rights".  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 10 
 
 
Such measures may be ordered "in all situations  of urgency, on a provisional basis, without 
prejudice to the principal action" (Article 201 of  the Code of Civil and Commercial Procedure). 
 Articles 51-60
 
 
 As regards the special requirements related to border measures referred to in Articles 51 to 60 
of the TRIPS Agreement, in addition to the Customs Code which protects the borders from any 
infringement of intellectual property and Article 50 of Law No. 94-36 of 24 February 1994 on Literary 
and Artistic Property, which prohi bits the importation of works breaching copyright, Articles 50-1 to 
50-5 of the draft Law amending and adding to La w No. 94-36 1994 on Literary and Artistic Property 
contain provisions in accordance with th e requirements of the TRIPS Agreement. 
 
1. Thus, Article 50-1 of the draft Law states that "customs authorities may suspend customs clearance procedures for products in respect of wh ich there is manifest evidence of infringements 
against copyright and related rights.  The customs authorities may ask the author and holders of 
related rights or their representative to provide an y information which may be of assistance in the 
exercise of their authority".  2. As regards procedures by which the cust oms authorities suspend the release into free 
circulation of the goods, paragraph 2 of Article 50-1 states that "the customs authorities shall promptly 
notify the author or holders of related rights or th eir representative of the suspension; they are required 
to lodge the application referred to in Article 50-2 within a time limit of seven days from the date of 
the notification".  
Article 50-3 of the same draft Law states that "customs authorities shall immediately notify 
the author or holders of related rights or their repr esentative, and the owner, importer or consignee, of 
the suspension of release, giving them the opportunity  to examine the products whose release has been 
suspended in accordance with the provisions of the Cu stoms Code. On the basis of a ruling on request, 
to enable the author and holders of related right s or their representative to bring legal actions, the 
customs authorities are required to inform them of  the names and addresses of the owner, importer or 
consignee, if known". 
 
Finally, Article 50-5 of the draft Law amending and adding to Law No. 94-36 of 
24 February 1994 states that "the owner, importer or consignee shall be entitled to ask the Court to 
revoke the suspension of the release of the products at  issue, in return for the lodgement of a security 
sufficient to protect the interests of the author  or holders of related rights, provided that: 
 
- The customs authorities have been inform ed within the time limit specified in 
Article 50-4 of this Law of the referral of the matter to the competent Court for a ruling on the merits of the case; 
 - on the expiry of that time limit, the competent Court has not granted any 
precautionary measures;  and 
 
- all customs formalities have been completed.  
3. As regards the actual duration of the customs procedures, Article 50-4 of the draft Law 
amending and adding to Law No. 94-36 of 24 February 1994 on Literary and Artistic Property states 
as follows:  
"Subject to completion of all customs formalities,  the measure of suspension of the release of 
the products shall be revoked automatically if the author, holders of related rights or their IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 11 
 
 
representative has failed to provide the customs au thorities, within ten days from notification 
of the suspension of the release of the products, with proof of the following:  - Adequate precautionary measures ordered by the competent Court;  or 
 
- the lodgement of a civil or criminal action;  or  - lodgement of a security sufficient to cover its liability to the persons concerned in the 
event of it being subsequently established that  the products in question do not infringe 
the copyright or related rights.  The amount  of the said security shall be set by the 
competent Court. 
 
Where appropriate, the time limit set down in the first indent of this Article may be extended 
by a maximum of ten days by the competent Court. 
 
The measure of suspension of release of the pr oducts pursuant to Artic le 50-1 is also revoked 
automatically if the author, holders of related rights or their representative fails to lodge the 
application referred to in this Article within a time limit of seven days from the date of notification by 
the customs authorities."  
The customs authorities may act on their own in itiative to suspend the customs clearance 
procedures for products in respect of which there is  manifest evidence of infringements of copyright 
or related rights (Article 50-1 of  the above-mentioned draft Law). 
 
Article 61
 
 
 As regards the criminal procedures referred to in Article 61 of the TRIPS Agreement, further 
to reparation for damage in civil proceedings, Article 52 of Law No. 94-36 of 24 February 1994 
provides for a fine of 50 to 5,000 dinars, doubled in  the event of a repeat o ffence, with the possibility 
of imprisonment for between one and six months.  
Article 52 (new) of the draft Law amendi ng and adding to Law No. 94-36 of 
24 February 1994 on Literary and Artistic Prope rty increases the fine to between 1,000 and 
50,000 dinars.  
The fine is doubled in the event of a repeat offence, and the possibility of imprisonment has 
been increased to between one and 12 months. 
 These penalties may be accompanied by confiscation of the infringing goods, their destruction 
and the temporary or definitive closure of the establishment where the infringement was committed. 
 
As regards the public authorities charged w ith identifying infringements and initiating 
criminal proceedings, the first paragraph of Article 54 (new) of the draft Law amending and adding to 
Law No. 94-36 of 24 February 1994 on Literary and Ar tistic Property states that "the identification of 
breaches of this Law and the drawing up of record s of evidence [is] entrusted to the criminal 
investigation police authorities and officials of th e Ministry of Culture duly sworn and empowered for 
this purpose ...". 
 
Article 54 (new) of the draft Law amending and adding to Law No. 94-36 extends these 
prerogatives to customs officials, officials responsib le for monitoring economic  activity and municipal 
regulatory officials.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 12 
 
 
Public authorities may act on th eir own initiative to institute criminal proceedings.  Thus, 
paragraphs 2 and 3 of Article 54 (new) of the draft Law amendi ng and adding to Law No. 94-36 of 
24 February 1994 on Literary and Artistic Property stat e that "the above-mentioned officials may seize 
the necessary documents and take samples of th e counterfeit products for the purposes of the 
investigation and to prove the infringement, agains t receipt. They may also seize, as a preventive 
measure, any products suspected to be counterfeit and not in accordance with current regulations". 
 
2. What protection does your Copyright legislation afford to "foreign works"? 
 According to the provisions of the last para graph of Article 56 (new) of the draft Law 
amending and adding to Law No. 94-36 of 24 February  1994 on Literary and Artistic Property, "the 
provisions of this Law regarding copyright a pply to works qualifying for protection under an 
international convention to which the Tunisian State is a party", noting that Article 32 of the Tunisian 
Constitution states that legally ratified conventi ons take precedence over national Laws in the 
hierarchy of legal norms, subject to their applicati on by the other party (principal of reciprocity). 
 
Tunisia ratified the Uruguay Round agreements by Law No. 95-6 of 23 January 1995.  Thus, 
the provisions of that Law provide protection to the nationals of all member countries. 
 
III. RESPONSES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND 
THEIR MEMBER STATES  
A. G
ENERAL  
1. Please describe if your legislation includes measures necessary to protect public health 
and nutrition, and to promote the public intere st in sectors of vital importance to your socio-
economic and technological development as ment ioned under Article 8 of the TRIPS Agreement.  
If so, please explain how such measures are consistent with the provisions of the TRIPS 
Agreement. 
 
 Pursuant to Article 8 of the TRIPS Agreement,  and with a view to protecting public health 
and nutrition and promoting the public interest, Chap ter XI of Law No. 2000-84 of 24 August 2000 
on Patents provides for ex officio licensing. 
 
Article 78.4 of the Law accordingly stipulates that  "if required in the interests of public health, 
patents issued for medicines, for products necessar y for obtaining those medicines or for processes for 
making such products may, in the event of the said medicines being made available to the public only 
in insufficient quantity or quality or at abnormally high prices, be made subject to ex officio  licensing 
at the request of the Minister of Public Health, by order of the Minister of Industry". 
 B. 
COPYRIGHT AND RELATED RIGHTS  
2. Please state how your legislation provides fo r the protection of the exclusive rights of 
authors in relation to their literary and artistic works, as specified in Article 9 of the TRIPS 
Agreement, which requires Members to comply wi th Articles 1-21 of the Berne Convention 
(1971) and the Appendix to the Berne Convention. 
 
 Tunisian legislation protects the exclusive rights of authors in their literary and artistic works.  
Law No. 94-36 of 24 February 1994 on Literary and Artistic Property thus provides for economic and 
moral rights. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 13 
 
   As regards economic rights, Article 2 of La w No. 94-36 of 24 February 1994 provides that 
copyright affords an exclusive right  to carry out or authorize the carrying out of any of the following 
acts:  
 (a) Reproduction of a work in any materi al form whatsoever, including phonograms, 
audiovisual recordings and the like; 
  (b) communication of the work to the public  by any means, in particular by public 
performance such as performance in hotel s and restaurants, by means of: 
 
 - a medium for the broadcast of recorded works;  
- broadcasting means;  
- modes of transmission by cable or satellite; 
  (c) communication of a broadcast work to the public:  
- by wire, loudspeaker or any other device that transmits signs, sounds or 
images; 
 
 (d) any translation or adaptation of a work. 
  This Article will be amended a nd supplemented in order to clar ify certain concepts and adapt 
it to developments in the field of copyright, in  particular the WIPO Copyright Treaty (WCT) of 
December 1996 and the TRIPS Agreement. 
   The draft law amending and supplementing Law No. 94-36 of 24 February 1994 provides, in 
its Article 9-1, that authors' economic rights are exclusive rights of the author to exploit his work or to authorize its exploitation by third parties, by way of any of the following acts:  
 (a) Reproduction of the work by any pro cess, including printing, drawing, sound or 
audiovisual recordings on magnetic tape, discs, compact discs or any computer system and the like; 
  (b) communication of the work by any process, in particular by: 
 
- public performance such as performance in  hotels, restaurants, land, sea or air 
means of transport, as in festivals and entertainment halls; 
  - drama or public performance;  
 - a medium for wire or wireless broadcast of recorded works; 
 
- means of broadcasting transmission or reception and the like;  loudspeakers 
and any other device that transmits signs, sounds or images;  satellites, cables, 
computer networks or other similar means; 
 
 (c) any form of exploitation of the work in general on a physical medium, including rental 
of the original and copies thereof; 
  (d) translation, adaptation, arrangement and ot her alterations of a work deemed under this 
Law to be derivative works. IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 14 
 
   As regards moral rights, Article 9 of Law No . 94-36 of 24 February 1994 stipulates that an 
author's moral rights include, in particular:  
(a) a right of authorship; 
 (b) a right of non-authorship;  (c) a right to assume a pseudonym; 
  
(d) a right to oppose any modification or distortion or mutilation of his work;  (e) a right to present his work to the public by any means; 
 
(f)  a right to withdraw his work from circulation. 
 
  This Article will be amended in the draft law amending and suppleme nting Law No. 94-36 of 
24 February 1994, in order to clarify practical questions such as: 
 
- Indication of the name of the author, in th e manner that is customary, each time that a 
work is made available to the public and on each copy that reproduces the content of 
the work on a physical medium; 
 
- requirement of written consent by the author  for any modification, addition, alteration 
or mutilation of a work and any derogatory action in relation to the work which would 
be prejudicial to the author's honour or reputation; 
 
- indemnification of the authorized user in the event of any injury  incurred as a result of 
withdrawal of the work from circulation. 
 
3. Please describe the protection accorded to  authors of computer programs, databases or 
compilations of data.  
 
 As regards computer programs: 
  Article 1 of Law No. 94-36 of 24 February 19 94 on Literary and Artistic Property includes 
"software" (i.e. computer programs, as establis hed during the Law's preparatory stages) among the 
works covered by copyright.   All general provisions relating to copyright, th e rights it confers and the obligations it entails, 
the procedures for identifying infringements and the ensuing penalties thus apply to computer 
programs to the extent that they are not contrary to the provisions of Chapter VII on Software. 
 
 Copyright covers computer programs in both s ource and object code.  The presumed author of 
the computer program is the person under whose name the program has been released.  Programs 
written by employees in the course of their duties belong to the employer.  
 The Law on Scientific Research (Law No. 96-6 of 31 January 1996, as amended by Law 
No. 2000-68 of 17 July 2000 and its implementing ru les and regulations) provides that government 
employees are entitled to various advantages and incentiv es in respect of the exploitation of the results 
of their research.   IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 15 
 
  Computer programs and related documentation ar e the property of the producer.  The author 
of a computer program has an exclusive right to carry out, authorize or prohibit certain acts relating to his work (reproduction, communication to the public , broadcasting and adaptation) and enjoys the 
economic and moral rights deriving from copyright.  Au thorization granted by the author must be in 
the form of a written contract containing a number of mandatory clauses.  Economic rights may be 
assigned in part or in full.  Assignment of works not yet created is deemed null and void. 
  Computer programs may be adapted only within the limits of the rights assigned by the author. 
 
 Unless expressly so authorized , the user of a legitimately acquired program may not produce 
any copies thereof other than a backup copy.   The term of protection of computer program s under Law No. 94-36 of 24 February 1994 is 
25 years.  In accordance with th e TRIPS Agreement, ratified by Law No. 95-6 of 23 January 1995, the 
draft law amending Law No. 94-36 has extended the term to 50 years.      Data compilations (or databases) are implicitly protected under Articles 1 and 6 of Law No. 94-36 of 24 February 1994.  Amended Article 6. 2 of the draft law expressly provides that authors 
of works such as encyclopaedias or anthologies, folklore collections or databases which, by reason of 
the selection or arrangement of their contents, cons titute intellectual creations are protected without 
prejudice to the rights of the authors of the original works.  
 
4. Please state whether your legislation provides for a rental right and, if so, the works to 
which it applies. 
   Article 9-1 of the draft law amending and s upplementing Law No. 94-36 of 24 February 1994, 
which applies to all authors of protected works, s tipulates that authors' economic rights are exclusive 
rights of the author to exploit his work or to authorize its exploitation by third parties, by way of any of the following acts:  
 (a) Reproduction of the work; 
   (b) communication of the work to the public;   (c) any form of exploitation of the work in general on a physical medium, including rental 
of the original and copies thereof. 
 
5. Please describe the rights granted to performers, producers of phonograms (sound 
recordings) and broadcasting organisations under your legislation. 
 
 Law No. 94-36 of 24 February 1994 does not c over related rights.  Tunisia recognized the 
protection of such rights in ratifying the TRIPS Agreement (Law No. 95-6 of 23 January 1995 
ratifying the Uruguay Round Agreements).  Chapter 7 bis (new) of the draft law amending and 
supplementing Law No. 94-36 of 24 February 1994  on Literary and Artistic Property deals with 
related rights (rights of performers, producers of phonograms and broadcasti ng organizations), in 
accordance with the TRIPS Agreement. 
 
 Holders of related rights enjoy the following rights:   Performers (Article 47-3)   IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 16 
 
 Moral rights
 
 
(1) A right, in respect of their sound or audiovisual performances, whether live or fixed 
on phonograms, to be identified as performe rs, except where the manner of use of the 
performance precludes such identification;  
 
(2) a right to oppose any distortion, mutilation or other modification of such performances 
that might be prejudicial to their reputation. 
 
  These rights are inalienable and impr escriptible, and may not be renounced. 
 Economic rights
 
 
(1) A right of broadcasting and communicati on to the public of unfixed performances, 
except where the performance is al ready a broadcast performance; 
   (2) a right of fixation of an unfixed performance;  
(3) a right of direct or indirect reproduction  of their performances,  fixed on phonograms 
or videograms, in any manner or form whatsoever; 
 
(4) a right of distribution to the public of the original and copies of the fixation of their 
performances on phonograms or videograms, by means of sale or any other transfer of 
ownership; 
 
(5) a right of commercial rental to the public of the original or copies of the fixation of 
their performances on phonograms or vide ograms, even after these have been 
distributed by the performers themselves or with their authorization; 
 
(6) a right to make their performances fixe d on phonograms or videograms available to 
the public by wire or wireless means, in su ch a way that members of the public may 
access the work from a place and at a time individually chosen by them. 
 
  These are exclusive rights of performers to authorize partial use of their performances. 
   Producers of phonograms or videograms (Article 47-5): 
 
- A right of direct or indirect reproduction of their phonograms or videograms, in any 
manner or form whatsoever; 
 - a right of distribution to the public of the originals and copies of their phonograms or 
videograms, by means of sale or any other transfer of ownership; 
 
- a right of commercial rental to the public of the originals and copies of their 
phonograms or videograms, even after these ha ve been distributed by the producers 
themselves or with their authorization; 
 
- a right to make their phonograms or videograms available to the public by wire or 
wireless means, in such a way that memb ers of the public may access the work from a 
place and at a time individually chosen by them. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 17 
 
   These are exclusive rights of producers of phonograms or videograms to authorize the use, in 
full or in part, of their phonograms or videograms.     Broadcasting organizations (Article 47-8): 
  
- A right of fixation and recording on a physical medium of their broadcasts or 
reproduction of such recordings; 
 - a right to re-broadcast their broadcasts; 
 
- a right of communication of their broadcast s to the public in places accessible to the 
public, subject to payment of an entrance fee. 
  These are exclusive rights of broadcasting organizati ons to authorize the use, in full or in part, 
of their broadcasts. 
 
6. Please state whether your legislation provides for any limitation or exception in relation 
to each of the rights described above in acco rdance with the relevant provisions of the Berne 
and Rome Conventions and in light of Arti cles 13 and 14.6 of the TRIPS Agreement. 
 
 Article 47-10 of the draft law amending a nd supplementing Law No. 94-36 of 24 February 
1994 on Literary and Artistic Property stipulat es that performers, producers of phonograms or 
videograms and broadcasting organizations are subj ect to the limitations on and exceptions to 
copyright, meaning that a work may be used without the author's permission for:  
 - personal and private use, 
  - educational purposes, and   - information purposes,  
provided that this does not conflict with a normal exploitation of the work and does not unreasonably 
prejudice the legitimate interests of the right holder. 
 
7. Please state the terms of protection of each right described above and the work or subject matter to which it applies. 
 Copyright
 
  The draft law amending and supplementing Law No. 94-36 of 24 February 1994 on Literary 
and Artistic Property has unified the term of c opyright protection, extending it to 50 years. 
 
 Article 18 (new) of the draft law am ending and supplementing Law No. 94-36 of 
24 February 1994 provides that protection of author s' economic rights subsists for the lifetime of the 
author and for 50 years counted from 1 January of the year following the author's death or of the date 
determined in a finding of presumed death in the event of absence or disappearance. 
 
 In the case of works of joint authorship, protection subsists for 50 years counted from 
1 January of the year following the death of the last  surviving author or of the date determined in a 
finding of presumed death in the event of absence or disappearance.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 18 
 
  In the case of anonymous or pseudonymous work s, protection subsists for 50 years counted 
from the date on which the work was first publishe d.  Copyright is exercised by the publisher or 
distributor of the work  
 Where a pseudonym does not conceal the aut hor's identity from the public, or where the 
author of an anonymous or pseudonymous work reveals his true identity, the term of protection is that 
provided for in paragraph 2 of this Article.   In the case of works published after the aut hor's death, protection subsists for 50 years 
counted from 1 January of the year following that in which the work was first published.  Copyright is 
exercised successively by the executor, heirs, spouse or any othe r heirs to whom the rights of the 
author accrue.    In the case of photographic works, Article 19 (new) stipulates that protection subsists for 
50 years counted from the date on which the work was created.  The same term is provided for 
software (new Article 47).   In the case of cinematographic or audiovisual wo rks, the term of protection is also 50 years 
counted from the date of the first lawful public performance of the work.  
 Where performance has not taken place, the term  of protection is 50 years counted from the 
date on which the first reference copy was made  (Article 42-1 of the draft law amending and 
supplementing Law No. 94-36 of 24 February 1994).  Related rights
 
 
 The term of protection of performers' rights is 50 years counted from 1 January of the year following that in which the performance was fixed on a phonogram or videogram.   The term of protection of the rights of pr oducers of phonograms or videograms is 50 years 
counted from the year following that in which th e phonogram or videogram was released or, failing 
such release, 50 years counted from 1 January of th e year following that in which the fixation of the 
phonogram or videogram took place.   Protection of the rights of broadcasting orga nizations subsists for 20 years counted from 
1 January of the year following that in which: 
 
- The fixation took place, in the case of phonograms or videograms and the 
performances fixed on them;  
 
- the performance took place, in the case of performances not fixed on phonograms or 
videograms; 
 
 - the broadcast took place, in the case of broadcasts.     
8. Please state how your legislation grants the retroactive protection provided pursuant to 
Article 18 of the Berne Convention (the obligation of which derives from Article 9 of the TRIPS 
Agreement) and Article 14.6 of the TRIPS Agreement. 
 
 Article 18.1 of the Berne Convention provides for retroactive effect in respect of works which 
existed at the moment of the Convention's coming into  force.  It stipulates that such works may be 
protected where the term of protection has not yet expired in the country of origin. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 19 
 
  Article 18.2 stipulates, as an exception to the above principle, that "if […] through the expiry of the term of protection which was previously gran ted, a work has fallen in to the public domain of 
the country where protection is claimed, that work shall not be protected anew". 
 
 Under Tunisian law, the principle of non-retro activity of laws is de emed to be a general 
principle of law settling the problem of conflict of  laws in time, meaning that a new law does not 
apply to acts and facts that were governed by a pre-existing law.   This principle is enshrined in the provisions  of the Tunisian Constitution governing criminal 
matters.  Article 13 of the Constitution thus stipulates that the penalty is in personam  and cannot be 
pronounced except under a provision of pre-existing legislation.   Likewise, Article 1 of the Penal Code stipulates that "no one may be punished except under a provision of a pre-existing law.  Where a law more  favourable to the accused is enacted after the 
occurrence of the fact but prior to the fi nal ruling, that law alone shall apply". 
  The principle of non-retroactivity of laws recognizes exceptions in civil matters.  Among these exceptions is a text that expressly provides fo r retroactivity, i.e. that allows retroactive 
application.  Article 18.1 of the Berne Convention,  duly ratified by Tunisia (which is one of the 
10 countries that established the Berne Convention), may be regarded as one of the exceptions where 
retroactivity (in civil matters) is recognized. 
  
9. Please explain whether the droit de suite  provided for in Article 14 ter of the Berne 
Convention is protected in your legislation. 
  Article 25 of Law No. 94-36 of 24 February 1 994 on Literary and Artistic Property provides 
for authors' droit de suite  in manuscripts and three-dimensional works. 
  This Article stipulates that "the authors of  manuscripts and three-dimensional works shall 
have an inalienable right, despite any assignment of th e original work, to participate in the proceeds of 
any sale of the work made at auctions or through a dealer.   
 
 After the death of the author, this resale roya lty right shall subsist for the remainder of the 
current Gregorian year and for the following 50 years.   Five per cent of the proceeds of the sale shall 
be levied for the benefit of the author or his heirs".  
C. 
TRADEMARKS  
10. Please give the definition of a sign under your national legislation and explain under 
what conditions it is protectable.  
 According to Article 2 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks, 
marks are visible signs that distinguish products offered for sale or services provided by a natural or 
legal person. 
  Article 2 further provides that marks consisti ng of appellations of any kind, figurative signs 
and sounds are eligible for protection.   
 Under the terms of Articles 3 and 5 of the La w, however, signs devoid of distinctiveness, 
signs infringing prior rights, well-known marks and marks contrary to ordre publique  and morality are 
excluded from protection.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 20 
 
  Moreover, Article 6 of the Law specifies that ownership in a mark is  acquired by registration 
with the industrial property agency.    
11. Please confirm whether or not services are a protectable subject-matter in your 
trademark law.  Please confirm if signs, such as  trade names, are protectable.  Please describe if 
elements such as sound, perfumes and containers are protectable.  
 Service marks, like trademarks, are protected in Tunisia under Law No. 2001-36 of 
17 April 2001.  Article 1 states that "the object of  this Law is to establish rules relating to the 
protection of trademarks and service marks". 
  In Tunisia, trade names are protected under the law on trade registration and may also be 
registered as trademarks if the owners use them as such.  
 Article 5(c) of the Law of 17 April 2001 on tr ademarks stipulates that a sign that infringes a 
trade name may not be adopted as a trademark, if ther e is a risk of confusion in the mind of the public. 
  Under the terms of the above Law, only sou nds (Article 2(c) and shapes of products 
(Article 2(b)) are eligible for trademark protection.  12. Please explain what the requirements of use are, if any, as a condition for trademark registration.  Please explain the definition of  use and the conditions of maintenance of a 
registration in that respect.  
 Under the terms of Article 34 of Law No. 2001- 36 of 17 April 2001, the owner of a mark 
who, without good cause, fails to make serious use of it, for at least one of the goods or services 
covered by the registration, during an uninterrupted period of five years will be liable to forfeit his 
rights.   However, use is not a prerequi site for trademark registration. 
 
 As regards the definition of use, Article 34. 2 specifies that "serious use of a mark shall 
include:   - Affixing the mark to goods or their packaging for marketing purposes;  
 - use of the mark in a modified form th at does not change its distinctive character; 
 - use made with the consent of the owner of  the mark or by any person authorized to 
use a collective mark". 
 
13. Please confirm whether or not your legi slation permits that the registration of 
trademarks be indefinitely renewable. 
 
 Registration of trademarks is renewable indefinitely following e xpiry of the term of protection 
of 10 years counted from the date of filing the appl ication for registration (Article 16 of the Law of 
17 April 2001). 
 
14. Please describe the special requirements, if any, prescribed by your legislation 
concerning the use of a trademark.  
 The special requirements concerning use of a trademark are as follows. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 21 
 
  Under the terms of Article 34 of Law No. 2001- 36 of 17 April 2001, action for forfeiture of 
the rights of the owner of a mark may not be brought where, in the interval between expiry of the five-
year period and the filing of such action, serious use of the mark has either begun or been resumed.    
 However, serious use of the mark does not c onstitute an obstacle to forfeiture if undertaken 
within the three months preceding the action for forf eiture and after the owner became aware of the 
possibility of an action for forfeiture.  It is the re sponsibility of the owner of the mark against whom 
the action for forfeiture is brought to prove that the mark has been used. 
 
D. 
GEOGRAPHICAL INDICATIONS  
15. Please explain whether or not your trademark registration authority refuses a 
trademark application if it contains a geographical indication.  
 Under Article 20 of Law No. 99- 57 of 28 June 1999 on registered appellations of origin and 
indications of source of agricultural products, th e industrial property agency may not grant any 
trademark for a registered appellation of origin or an indication of source if the trademark application 
is filed after the territory covered by the registered  appellation of origin or the indication of source has 
been defined and made public.    If the trademark application was filed before the territory in question was defined and made 
public, the Ministry of Agriculture may oppose regi stration of the mark, pursuant to Law No. 2001-36 
of 17 April 2001 on the Protection of Trademarks. 
 
16. Please give the definition of a geographical indication in your legislation.  
 Law No. 99-57 of 28 June 1999 on the protection of appellations of origin defines a registered 
appellation of origin as the name of the country, na tural region or part of a region from which the 
product originates and as deriving its value and specif ic features from its ge ographical environment, 
which consists of natura l and human factors.  
  The term "natural factors" generally refers  to the geographical environment in which the 
product originates, including characteristics relati ng to land, water, plant cover and climate. 
  The term "human factors" encompasses in particular production, manufacturing or processing methods and the specific techniques acquired by the producers or manufacturers in the region 
concerned. 
 
 Production methods must derive from ancien t, stable and well-known local traditions. 
  The term "indication of source" is defined in Article 3 of the Law as the name of the country, 
natural region or parts of regions from which the pr oduct derives its characteristics and reputation and 
where it is produced, processed or manufactured. 
 
17. Please describe and explain the provisions of your legislation establishing a link, if any, 
between the characteristics of an indication and its geographical origin. 
 
 According to Article 2 of Law No. 99-57 of 28  June 1999 on registered appellations of origin 
and indications of source of agricultural produc ts, the link between the characteristics of a 
geographical indication and its geographical origin is that a product originating in a given region 
derives its value and specific features from its ge ographical environment, wh ich consists of natural 
and human factors.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 22 
 
 
18. Please describe how additional protection is granted by your legislation to wines and 
spirits.  Please mention other types of products, if any, covered by this additional protection. 
 
 In Tunisia, wines and spirits are protected under Law No. 99-57 of 28 June 1999 on registered appellations of origin and indications of source of agricultural products.  The Law does not provide for 
additional protection for wines and spirits.  
19. Please explain how exceptions under Articl e 24 of the TRIPS Agreement are used in 
your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of 
names considered as generic in your jurisdiction. 
 
 The exceptions under Article 24 of the TRIPS Agreement are provided for in Article 20 of 
Law No. 99-57 of 28 June 1999.  This Article stipul ates that the industrial property agency may not 
grant any trademark similar to an indication of sour ce if the trademark application is filed after the 
territory covered by the registered appellation of or igin or the indication of source has been defined 
and made public.  E. 
INDUSTRIAL DESIGNS  
20. Please explain whether or not your legisl ation extends to the protection of designs 
dictated essentially by technical or functional co nsiderations.  Please explain how textile designs 
are protected. 
 
 Article 2 of Law No. 2001-21 of 6 February  2001 on the Protection of Industrial Designs 
specifies that the Law applies to "any new design, any new three-dimensional shape or any industrial 
product that differs from similar designs by having either a distinct and recognizable configuration 
conferring novelty or one or more outward effect s giving it a new and characteristic appearance". 
  Article 2.2 provides that "if the same subject-m atter may be regarded as both a new industrial 
design and a patentable invention and if the elemen ts that constitute the no velty of the industrial 
design are inseparable from those of the invention, the said subject-matter may be protected only in 
accordance with the provisions applicable to patents".  
 
 Textile designs are protected on the same terms as all other products, but  they also enjoy the 
following advantages:   - Article 15:  possibility of delaying publication; 
 
- Article 10:  term of protection, at the applicant's choice, of five, 10 or 15 years; 
  - collective filing.   
21. Please explain how your legislation protects right holders of a design against importing 
of articles bearing embodied or copied design. 
 
 Article 4 of Law No. 2000-21 of 6 February  2000 on the Protection of Industrial Designs 
provides that any creator of an industrial design or  his successors in title has the exclusive right to 
exploit or sell the design, without prejudice to the rights conferred by other statutory provisions and in 
particular the legislation relating to the protection of literary and artistic works. 
  Third parties not having the consent of the ow ner of an industrial design or his successors in 
title are prohibited from making, selling or importing goods bearing a design which is a copy, or 
substantially a copy, of the protected design, wher e such acts are undertaken for commercial purposes. IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 23 
 
   To enforce the above rights, the Law contains an  entire chapter (Chapter  V) relating to border 
measures providing for suspension of the free circulation of counterfeit industrial designs. 
  22. Please state whether or not your legislation provides for the right to issue a compulsory 
licence for industrial designs.  
 Law No. 2000-21 of 6 February 2000 on the Prot ection of Industrial Designs does not provide 
for the right to issue compulsory licences for industrial designs. 
 
23. Please indicate for what period of time your legislation grants protection for industrial 
designs.  
 Under the terms of Article 10 of the aforementi oned Law, an industrial design is protected, at 
the applicant's choice, for a period of five, 10, or 15 years at most. 
 F. 
PATENTS  
24. Please describe how your legislation defines the notions of: novelty, inventiveness and 
industrial application.  
 Article 4 of Law No. 2000-84 of 24 August 2000 on Patents stipulates that "an invention shall 
be considered new if it does not form part of the state of the art".   The state of the art comprises everything that  has been made accessi ble to the public by 
written or oral description, use or any other means prio r to the date of filing th e patent application or 
the date of priority validly claimed for this application. 
  According to Article 5 of the Law on Patents, invention must also involve an inventive step, 
i.e. it must not obviously derive, to a person skilled in the relevant field, from the state of the art on the 
date of filing the patent application.   
 Article 6 of the Law states that an invention is susceptible of industrial application if its 
subject-matter can be produced or used in any type of industry or in agriculture.  
25. Please explain whether or not in your legislation, patent or otherwise, patent rights are 
enjoyed without any exclusions.  If exclusions  are provided for, please describe in detail how 
these exclusions are applied in legal as well as practical terms. 
 
 Law No. 2000-84 of 24 August 2000, which deals w ith the protection of inventions, provides 
for exclusions from patent rights.  These exclusions are listed in Articles 47, 48, 49 and 50 of the Law, 
which stipulate that the exclusive rights conferre d by a patent do not extend to the following acts: 
 
 - Acts performed privately for non-commercial purposes; 
 
 - acts performed for experimental purposes relating to the subject-matter of the 
patented invention; 
 
 - the extemporaneous preparation for individual cases in a pharmacy of medicines on 
the basis of a medical prescription, or the acts relating to the medicines thus prepared; 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 24 
 
 
- the offer, importation, stocking or use, on Tunisian territory, of the patented product 
or the product obtained by a patented process, after the product has been lawfully placed on the market of any country by the patent holder or with his explicit consent; 
 
- acts required for the production of generi c drugs; products resulting from such acts 
may not be exploited for commercial purposes until the term of protection of the patent has expired; 
 
- the use of patented subject-matter on board  aircraft, land vehicles or foreign ships 
which temporarily or accidentally enter the airspace, territory or territorial waters of 
the Tunisian Republic.  
 
26. Please explain whether your legislation provi des for the exclusion of inventions from 
patentability based on ordre public or morality.  If so, please explain the relevant section of your 
legislation and explain its formulation.  Please al so explain if it has been applied in practice. 
 
 Article 3.2 of the Law of 24 August 2000 protec ting inventions provides that "a  patent may 
be not delivered for an invention the publication or  working of which would be contrary to morality, 
ordre public , public health or environmental protection".  The Article further specifies, however, that 
"working the patent may not be considered as such merely because it is restricted by a statutory or 
regulatory provision". 
  As an example, in practice anyone may not manufacture cigarettes or produce wine, but anyone may file patent app lications in these fields. 
  27. Please explain whether or not diagnostic, therapeutic and surgical methods are excluded 
from patentability in your legislation.  If so, please explain the relevant section of your legislation and explain its formulation.  
 Diagnostic, therapeutic and surgical methods  practised on the human or animal body are 
excluded from patentability under Article 2(d) of the Law of 24 August 2000.  
 
 This does not, however, apply to preparations and in particular to products and compositions 
used to put such methods into practice.  
28. Please explain whether or not plants, an imals and essentially biological processes are 
excluded from patentability in your legislation.  If so, please explain the relevant section of your 
legislation and explain its formulation.  
 Plants, animals and essentially biological pro cesses for the breeding of animals and plants are 
excluded from patentability under Article 3 of the Law.  
This does not, however, apply to medical biol ogical processes or the products of such 
processes.  
29. Please describe how micro-organisms, non-essentially biological processes, 
microbiological processes and plant varieties are protect ed in your legislation.  Please explain, in 
this respect, the relevant sections of your legislation. 
 
 Medical biological processes, including micro-organisms and the products of such processes 
are patentable (Article 3 of Law No . 2000-84 of 24 August 2000 on Patents). 
  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 25 
 
  Plant varieties are protected in Tunisia under Law No. 99-42 of 10 May 1999 on Seeds, Seedlings and Plant Varieties.  
30. Please explain how your legislation protect s patent right holders against the importing 
and against the offering for sale of a patented invention. 
 
 Article 46 of Law No. 2000-84 of 24 August 2000 provides that a patent confers an exclusive 
right of exploitation on its holder or his successors in title, meaning that third parties are prohibited 
from performing the following acts without the consen t of the patent holder or his successors in title: 
 
- Making, offering, placing on the market or  using a product which is the subject-matter 
of the patent, or importing or stocking a product for such purposes; 
  - using the manufacturing process that is the subject-matter of the patent; 
 
- offering, placing on the market or using the product obtained directly by a process 
which is the subject-matter of the patent, or  importing or stocking a product for such 
purposes. 
  For the purpose of enforcing the above ri ghts, the Law contains an entire chapter 
(Chapter XIII) relating to border measures provi ding for suspension of the free circulation of 
counterfeit products.  
31. Please state if your legislation provides fo r patent product protection of pharmaceutical 
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference. 
  Under the terms of Article 1 of the Law on Pa tents, patent protection is afforded for any 
invention of a product or manufacturing process.  Phar maceutical and agricultural chemical products 
are therefore patentable.  
32. Please clarify if the patent protection of a process, as provided for in your legislation, 
covers the product obtained directly by that process. 
 
 Article 1 of the Law on Patents states that  "any invention of a product or manufacturing 
process may be protected by a document referred to as a 'patent'".  
Article 85.2 of the Law specifies, however, that  "if the patent subject-matter is a product 
manufacturing process, the court is entitled to order the defendant to prove that the process used to 
obtain an identical product is different from the pate nted process.  If the defendant fails to provide 
such proof, any identical product manufactured without the consent of the patent holder shall be presumed to be obtained by the patented process if the product is new".  33. Please explain the additional conditions, if any, in your legislation other than the sufficient disclosure of the invention in Article 29 of the TRIPS Agreement (e.g. submission of justification for access to genetic material or prior inform consent to its use).  If such additional 
conditions exist, please point out the relevant legislation and describe the additional conditions in detail. 
  Tunisian legislation does not provide for any additional conditions other than that the 
invention must be disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art in the relevant field of  technology (Article 21 of the Law on Patents). 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 26 
 
 
34. Please describe if your legislation provides fo r limited exceptions to the exclusive rights 
conferred by a patent.  If so, please ma ke a reference to relevant legislation. 
 
 Tunisian legislation provides for exceptions to  the exclusive rights conferred by a patent.  
These are set forth in Articles 47, 48, 49 and 50 of the Law on Patents. 
  The exclusive rights conferred by a patent do not extend to the following acts:   - Acts performed privately for non-commercial purposes; 
 
 - acts performed for experimental purposes relating to the subject-matter of the 
patented invention; 
  - the extemporaneous preparation for individual cases in a pharmacy of medicines on 
the basis of a medical prescription, or the acts relating to the medicines thus prepared; 
 
- the offer, importation, stocking or use, on Tunisian territory, of the patented product 
or the product obtained by a patented process, after the product has been lawfully placed on the market of any country by the patent holder or with his explicit consent; 
 
- acts required for the production of generi c drugs; products resulting from such acts 
may not be exploited for commercial purposes until the term of protection of the patent has expired; 
 
- the use of patented subject-matter on board  aircraft, land vehicles or foreign ships 
which temporarily or accidentally enter the airspace, territory or territorial waters of 
the Tunisian Republic.  
 
35. Please explain whether or not your legislatio n provides for compulsory licensing.  If so, 
please explain in detail the conditions under whic h a compulsory licence may be granted.  In 
particular, please explain how your national le gislation considers individual merits in the 
authorization of such use. 
 
 Tunisian legislation provides for a compulsory patent licensing system.  Under the terms of 
Article 69 of the Law on Patents, after the expiry of  a period of four years counted from the date of 
filing the application or three years from the granting of  the patent, whichever is later, if the patented 
invention is not worked, any interested party may seek a compulsory licence at any time, if industrial 
exploitation of the patented invention has not comme nced or no effective and serious preparations for 
its exploitation in Tunisia have been ma de within the relevant time-limit.  
 
 Compulsory licences may also be granted if th e subject-matter of the invention has not been 
commercialized in sufficient quantities to meet the n eeds of the Tunisian market and the industrial or 
commercial exploitation of the patented invention h as been discontinued in Tunisia for longer than 
three years.   To obtain a compulsory licence, an application must be filed with the competent court, along with proof that the applicant has approached the pa tent holder to seek a contractual licence but has not 
been able to obtain such a licence on reasonable te rms and conditions and within a reasonable period 
of time.     The applicant must also provide evidence that he  is in a position to work the invention in an 
effective and serious manner (Article 70). IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 27 
 
  
 Pursuant to Articles 74, 75 and 76 of the above  Law, the court examines the merits on which 
use may be authorized. 
 
36. Please explain how your legislation explic itly ensures that a proposed user has made 
efforts to obtain authorization from the ri ght holder on reasonable commercial terms and 
conditions and that such efforts have not been su ccessful within a reasonable period of time.  In 
this context, how do you define "reasonable p eriod of time"?  Please also explain how your 
legislation ensures that the use of a compulsory  licence shall be authorized predominantly for 
the supply to the domestic market of the Member authorizing such use.  
 According to Article 70 of Law No. 2000-84 on Patents, a person applying for a compulsory licence must provide proof that he has previously ap proached the patent holder by registered letter, 
with acknowledgement of receipt, to seek a contract ual licence but has been unable to obtain such a 
licence on reasonable terms and conditions a nd within a reasonable period of time. 
 
 All forms of evidence are admissible for the pur pose, and the court weighing the merits of the 
case has sole power to assess the evid ence produced in support of an application for a compulsory 
licence. 
 
Article 69 of the Law states that after the expi ry of a period of four years counted from the 
date of filing the application or three years from the granting of the patent, whic hever is later, if the 
patented invention is not worked, any interested party may seek a compulsory licence at any time in 
any of the following cases: 
 
- Where industrial exploitation of the patented invention has not commenced or no 
effective and serious preparations for such  exploitation in Tunisia have been made 
within the time-limit established in Article 51; 
 - where the subject-matter of the invention has not been commercialized in sufficient 
quantities to meet the needs of the Tunisian market; 
 
- where the industrial or commercial exploita tion of the patented invention has been 
discontinued in Tunisia for longer than three years; 
 
- the court rules on an application for compulsory licensing after hearing the parties 
(Article 73 of the Law on Patents) and sets the licensing conditions, in particular the 
term of the licence, its scope and the amount to be paid to the patent holder, which 
must be commensurate with the scope of e xploitation of the invention (Article 74 of 
the Law on Patents). 
 
 Licences designed solely for the supply of th e domestic market are governed by Chapter XI 
on Ex Officio Licences.  Article 78 of the Law on Pate nts stipulates that "the Minister of Industry may 
give patent holders formal notice to work the pa tents in such a way as to meet the needs of the 
national economy or the need for environmental conservation".  
37. Please state if your legislation grants additional protection for innovations after the 
20 years of patent protection have lapsed. 
 
 Tunisian legislation does not afford additional protection for innovations after the 20 years of 
patent protection have lapsed.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 28 
 
 
38. Please explain how your legislation provides for the reversal of the burden of proof in 
relation to process patents.  
 Under the terms of Article 85 of the Law protec ting inventions, if the pa tent subject-matter is 
a product manufacturing process, the court is entitled to  order the defendant to prove that the process 
used to obtain an identical product is  different from the patented process. 
  If the defendant fails to provide such pr oof, however, any identical product manufactured 
without the consent of the patent holder will be presum ed to be obtained by the patented process if the 
product is new. 
 G. 
LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS  
39. Please describe how your legislation protects topographies. 
 
 Layout-designs of integrated circuits are protected under Law No. 2001-20 of 
6 February 2001, to the extent that they are the result of their creators' own intellectual efforts and are not commonplace, at the time of their creation, in the integrated circuits sector (Article 3 of the Law). 
  Applications for layout-designs of integrated ci rcuits must be filed with the industrial property 
agency (Article 8). 
 
40. Please explain what protection your national legislation grants to right holders against 
the unlawful importation, sale or distribut ion for commercial purposes of topographies 
including integrated circuits or other articles in which a topography is incorporated in accordance with Article 36 of the TRIPS Agreement. 
  In accordance with Article 36 of the TRIPS Agreement, Article 17 of Law No. 2001-20 on the 
Protection of Layout-Designs of Integrated Circui ts prohibits third parties "from exploiting the 
reproduction of a layout-design of integrated circuits for commercial purposes or from importing to such ends a reproduction of any produc t incorporating such a layout-design". 
 
 The Law also contains an entire chapter (C hapter VII) relating to border measures providing 
for suspension of the free circulation of products incorporating copied layout-designs of integrated circuits.  
41. Please explain how your legislation provides for the derogation from Article 36, as 
specified in Article 37 of the TRIPS Agreement, where a person has no knowledge or reasonable 
grounds to know when acquiring an integrated circuit or an article incorporating such an integrated circuit that it contains an unlawful topography.  
 
 Pursuant to Article 37 of the TRIPS Agreem ent, which provides for derogation from Article 
36 of the Agreement, the prohibition in Article 17 of Law No. 2001-20 on the Protection of Layout-
Designs of Integrated Circuits is not effective against a person who acquired an integrated circuit bona 
fide.  That person will nevertheless be lia ble for appropriate indemnificati on if he intends to pursue the 
commercial exploitation of the circuit in question.  
 
42. Please state the term of protection granted by your legislation to topographies. 
  The protection of layout-designs of integrated  circuits commences on the date of filing the 
application or on that of the first commercial explo itation, provided that such exploitation does not 
exceed two years if it pre-dates the filing of the application.   IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 29 
 
  The protection of layout-designs lapses at the end of the 10
th calendar year following the date 
on which it commenced (Article 18).  H. 
PROTECTION OF UNDISCLOSED INFORMATION  
43. Please explain whether your legislation grants a defined period of time for the protection 
of undisclosed information.  If so, please give the time span.  
 Tunisian legislation establishes a procedure for the identification and protection of 
confidential information.  
   
44. Please explain how your legislation defines "undisclosed information". 
 
 With  reference to Article 168 of the Labour Code, undisclosed information includes 
information of a confidential nature and matters relating to manufacturing processes that come to a 
person's knowledge in the course of his duties. 
   Likewise, Article 61 of the Penal Code specifies that such information may concern either an 
invention of interest for national defence or in formation, research or manufacturing processes relating 
to an invention of interest for defence.  
 
45. Please explain how your legislation defines data submitted to governments or 
governmental agencies.  
 Pharmaceuticals are governed by Laws Nos. 73-55 of 3 August 1973 and 85-91 of 
22 November 1985.  Implementing rules and regulations have been enacted, including: 
 
- Decree No. 90-1400 of 3 September 1990, laying down rules of good manufacturing 
practice for medicines for human use and regulating quality control, packaging, 
labelling, denominati on and advertising; 
 
- Decree No. 90-1401 of 3 September 1990 laying down procedures for medical or 
scientific testing of medicines for human use; 
 
- Order of the Minister of Public Health of 10 September 1996 establishing the 
procedures for authorization to market medicines for human use and renewal and 
assignment of such authorization. 
 
 The above texts, pursuant to the laws that gave  rise to them, provide that infringement will be 
subject to disciplinary sanctions and civil and criminal penalties. 
  The processing of applications relating to medi cines is governed by procedures and provisions 
that guarantee the security of information.  They are detailed as follows. 
 
Reception of applications
 
    This is handled by a pharmaceutical inspector  dealing directly with the person delegated by 
the laboratory filing the application.  The application, countersigned by  the inspector, is then returned 
to the person with an official filing date.      
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 30 
 
 Assessment of applications
   
  Applications are kept under the inspector's res ponsibility.  Pharmaceutical files are sent to the 
National Drug Control Laboratory, which determines wh ether the product is in conformity with what 
is stated in its files, in the light of current pha rmaceutical knowledge.  Clinical files are submitted to 
an expert appointed by Ministerial order fo r a detailed report to an expert committee. 
 Assessment of products similar to registered products
   
 
 Data confidentiality is crucial at this stage, in  order to prevent the use of data recorded in 
another file.  
  In Tunisia, as in most countries with a reliabl e registration system, the procedure is based on 
the following: 
  
- Clinical data pertaining to a molecule that  is the subject-matter of a second application 
is not required because the molecu le has already been analysed; 
 - regulations require the product to be appr oved for marketing in its country of origin 
(Autorisation de mise sur le marché  - AMM);  where this is a country having signed 
the WTO Agreements, responsibility for ob servance of the provisions governing 
patents lies with the country of origin, if no application for a patent specific to another 
country has been filed;  where the country has not adhered to the WTO Agreements, it is for Tunisia to ensure observance of intellectual property provisions;  
 
- application for marketing approval requir es submission of a pharmaceutical file, 
including analysis methods which must satisfy either of the following conditions:  
 
(a) where the product is described in an international pharmacopoeia, reference to 
the latter is sufficient to validate the methods used;  
 
(b) if such is not the case, the supplier is required to present a method that he 
himself has validated without referring to the data furnished by the first holder 
of the marketing authorization. 
  
 Scientific publications may be used, however, for the relevant authority regards the results 
they contain as having become public knowledge at the initiative of the patent holder or of the 
international scientific community. 
  The procedure applied by Tunisia has been in force for more than 20 years, making it possible 
to avoid conflicts of interest and ensuring data confidentiality.  It has enabled the relevant authority to 
acquire the status of WHO Collaborating Centre fo r drug registration and pharmaceutical regulation. 
 
 Article 103 of Law No. 2000-84 of 24 Augus t 2000, which covers pha rmaceutical products, 
makes provision for delaying implementation of the La w according to the extension period set in the 
relevant WTO Agreement. 
  
 Tunisia nevertheless assures the admissibility of patent applications pursuant to that same 
international Agreement. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 31 
 
  All the aforementioned information and refe rences to regulation are public and can be 
accessed at:  www.dpm.tn
. 
 I. 
ENFORCEMENT  
46. Please describe how your legislation provides for effective action against infringement of 
intellectual property rights.  
 Under Law No. 94-36 of 24 February 1994 on Literary and Artistic Property, copyright 
infringements are punishable by a fine of 500 to 5,000 dinars.  The fine is doubled in the event of a 
repeat offence, with the possibility of a term of imprisonment of one to six months. 
 
Article 52 (new) of the draft law ame nding and supplementing Law No. 94-36 of 
24 February 1994 increases the fine to an amount ra nging between 1,000 and 50,000 dinars.  The fine 
is doubled in the event of a repeat  offence, with the possibility of a term of imprisonment of up to 
12 months. 
 These penalties may be accompanied by forfeiture of the infringing goods, their destruction 
and the temporary or definitive closure of the establishment where the infringement was committed. 
 
As regards the authorities responsible for iden tifying infringements and instituting criminal 
proceedings, Article 54, paragraph 1, of Law No . 94-36 of 24 February 1994 states that "the 
identification of breaches of this Law and the drawi ng up of records of evidence are entrusted to the 
criminal investigation police authorities and offici als of the Ministry of Culture duly sworn and 
empowered for this purpose". 
 
Article 54 (new) of the draft law amending an d supplementing Law No. 94-36 extends these 
prerogatives to customs officials, officials responsib le for monitoring economic  activity and municipal 
regulatory officials. 
 The authorities may institute criminal proceedings  on their own initiative.  Thus, paragraphs 2 
and 3 of Article 54 (new) of the draft law ame nding and supplementing Law No. 94-36 of 24 February 
1994 stipulate that "the above-mentioned offici als may seize the necessary documents and take 
samples of the counterfeit products for the purposes of  the investigation and to establish proof of the 
infringement, against receipt.  They may also seize, as a preventive measure, any products suspected 
to be counterfeit and not in accordance with current regulations".  
 Tunisian industrial property legislation pr ovides for effective enforcement of industrial 
property rights.  Infringement of such rights is an offence giving rise to civil and criminal liability. 
  There are also additional enforcement measu res in that the court may order, at the 
unsuccessful party's expense, the ruling to be pos ted up in places of its own choosing and to be 
published, in full or in part, in newspapers of its  choice, along with the destruction and forfeiture of 
the counterfeit goods. 
 
47. Please explain whether or not your legislat ion provides for a mechanism to appeal to 
judicial bodies of final administrative decisions.  
  Tunisian industrial property legislation estab lishes a mechanism to appeal to the relevant 
courts of final administrative decisions.  The a ppeal process is initiated by written application 
addressed or handed to the court registrar within the time-limit set by the law.  
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 32 
 
  Leave to appeal to judicial bodies of fina l administrative decisions is provided for in 
Articles 27 to 33 of the Law on the Protection of La yout-Designs of Integrated Circuits, Articles 37 to 
43 of the Law on the Protection of Trademarks, Ar ticles 17 to 23 of the Law on the Protection of 
Industrial Designs and in Articles 39 to 45 of the Law on Patents.  
  
48. Please describe how your legislation authorizes judges to order production of evidence 
by the opposing party.  Please give precise info rmation on what measures are taken to ensure 
the protection of confidential information. 
 Tunisian legislation empowers the judicial authorities to order a party in proceedings, on 
application by the opposing party, to produce the evidence lying in its control. 
 Articles 213 to 223 of the Code of Civil and Commercial Procedure give the presiding judge 
authority to serve an order on either party in a case following an ex parte  application, so as to ensure 
the protection of rights and interests that must not be left unprotected. 
 In cases of extreme urgency, judges may rule in  their private homes on questions submitted to 
them.  Enforcement of rulings issued in this manner is not subject to the appending of the seal of the 
court or " ad hoc " registration.  These formalities are completed later. 
 
Article 101 of the same Code states that "if it is  necessary to obtain an expert’s report and the 
parties fail to agree on the selection of the expert, the expert shall be appointed by the judge".   
 Tunisian legislation establishes the following procedure for the protection of confidential 
information:  
 Article 253 of the Penal Code states that "any person who discloses the contents of a letter, 
telegram or any document belonging to another part y without authorization shall be liable to a prison 
sentence of three months". 
 
 Article 254 of the Penal Code states that "any doctor, surgeon or other medical personnel, as 
well as any pharmacist, midwife or any other person in whom secrets are vested by virtue of their 
status or profession who reveals such secrets, exce pt where required or permitted by law to report the 
matter, shall be liable to a prison sentence of six months and a fine of 500 francs". 
 The general regulations govern ing the conduct of public-sector personnel place civil servants 
under obligations of professional secrecy and discr etion;  these general regulations include the 
following: 
 - The General Regulations for State empl oyees, including employees of local public 
authorities and administrative public bodies; 
 
- the General Regulations for the employees of Boards, industrial and commercial 
public bodies, and companies whose capital is he ld directly or indirectly by the State 
or by public authorities; 
 - the General Regulations for magistrates; 
 
- the General Regulations for customs staff;  - the General Regulations for the pers onnel of the internal security forces. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 33 
 
 
Furthermore, Article 168 of the Labour Code pr ovides that "members of company advisory 
committees and staff representatives are bound by the obligation of professional secrecy with respect 
to all information of a confiden tial nature coming into their posses sion while serving in that capacity, 
and to all matters relating to manufacturing processes.   
 
Any breach of this obligation shall entail the penalties laid down in Articles 138 and 254 of 
the Penal Code". 
 Article 138 of the Penal Code states that "in add ition to a fine, any manager, clerk or worker 
of a factory who discloses or communicates a manufacturing secret shall be liable to a prison sentence 
of two years.  Attempts to do so are also punishable".   Under Article 254, as cited above, persons in  possession of documents belonging to a third 
party that fail to observe secrecy are liable to six months' imprisonment and a fine. 
 
 Article 85 of Law No. 2000-84 of 24 August 2000 protecting inventions stipulates that the 
courts are empowered to order the production of evidence by the opposing party, where the patent 
subject-matter is the product manufacturing process.   In this case, the court has authority to order the defendant to prove that the process used to 
obtain an identical product is different from the patented process. 
 
 Thus, in the adduction of proof to the contrary , Article 85.3 of the Law stipulates that "the 
legitimate interests of the defendant in protecti ng his manufacturing and trade secrets shall be taken 
into account".  49. Please quote provisions of your legislation that authorize judges to order a defendant to desist from an infringement.  
 Under Tunisian legislation, the judicial au thorities are empowered to order a defendant to 
desist from an infringement, by issuing interi m orders, payment orders  and final judgments. 
 
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as 
necessary, the court may ask the reporting judge to carry out any investigative action, such as an 
inquiry, visit to the scene, expert’s report, taking of  pleas of forgery and any other action that will help 
to establish the truth".  
 
The court may, during the hearing and in the presence of the parties, set the date for the 
investigative action so ordered, specifying the date and time for the appearance of the parties in the 
chambers of the reporting judge or at the lo cation of the dispute or any other location. 
 Article 225 of that same Code states that "in an y event, the court may require ex officio the 
participation of a third party in the proceedings wh ere it sees the presence of that party as essential for 
a correct appreciation of the matter at issue".   
 If it is necessary to obtain an expert's report and the parties fail to agree on the selection of the 
expert, the expert is appointed by the judge. 
    IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 34 
 
 Interim orders
 
  Article 201 of the Code of Civil and Commerc ial Procedure (CCCP) states as follows:   
 
 "Interim orders may be made on urgent ap plications without prejudice to the main 
proceedings."   "Interim orders on urgent applications may be  made by the president of the court of first 
instance or his deputy, or by the district judge, where so authorized by law" (Article 202 of the 
CCCP). 
 
"Interim orders made on urgent applications  are enforceable 24 hours after being served, 
except where the court has granted an extension.  
 The order will be enforced without security , unless the judge has ordered that security be 
provided" (Article 207 of the CCCP).  Payment orders
 
  Under the terms of Article 59 of the CCCP, any claim for the payment of a debt, where the 
latter, whatever its nature, is for a specific am ount and has a contractual origin, may be submitted 
under the payment order procedure.  Judgments
 
 
 (The Code establishes three judicial levels , i.e. first instance, appeal and cassation.) 
  The judgment will not be final if the decision can  be appealed.  However, it may still be made 
immediately enforceable, with or without security, depending on the circumstances of the case (Articles 126 and 286 of the CCCP).  
Final judgments
 
  The final judgment (after appeals have been exhausted or the time-lim its for lodging appeals 
have expired) brings the case to a close by decidi ng the question forming the subject-matter of the 
proceedings. 
  
 The court may issue an interim order ordering a defendant to desist from an infringement. 
  Thus, measures dictated by urgency or difficulties relating to the enforcement of a judgment delivered or a writ of execution may be taken by the president of the competent court or his deputy 
sitting in chambers, in accordance with Articles 201 and 210 of the CCCP. 
 
 Law No. 2000-84 on Patents (and Article 87 in particular) accordingly provides that "where 
an action for infringement of a patented invention is brought before the court, the presiding judge may 
issue an interim order prohibiting, provisionally and on  pain of a fine, the continuation of the allegedly 
infringing acts or make the continuation of such act s subject to the provision of security intended to 
ensure the indemnification of the patent holder" .  This is also provided for in the Law on the 
Protection of Trademarks (i n particular Article 49). 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 35 
 
 
50. Please quote what provisions of your legislation authorize judges to order the payment 
to the right holder of adequate damages to compensate the injury he suffered. 
 
 Under Articles 82 and 83 of the Code of Ob ligations and Contracts (COC), anyone who 
knowingly or deliberately causes material or moral damage to others must make good the damage, 
where it is established that his action was the direct cause.   Article 82 of the Law on Patents, Article 34 of the Law on the Protection of Layout-Designs 
of Integrated Circuits, Article 24 of the Law on th e Protection of Industrial Designs and Article 44 of 
the Law on the Protection of Trademarks likewise provide for the civil liability of the infringer. 
 
51. Please quote what provisions of your legislation authorize judges to order the payment of the right holder's expenses by the infringer.  
 As a general rule, ordinary law (i.e. the C ode of Obligations and Contracts) provides for 
compensation for injury suffered, in cluding lawyers' fees, for example. 
  Moreover, according to Article 191 of the Code  of Penal Procedure, "the costs of the 
proceedings shall be ordered against the person convicted". 
 
52. Please explain if and how judges have the authority to order that infringing goods are 
placed outside channels of commerce or destroyed.  
Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property empowers 
the competent court to order, ex officio or on request, the confiscation or destruction of fraudulent 
copies and the temporary or definitive closure of th e establishment in which the infringement has been 
ascertained.   As regards industrial property, in addition to seizing the infringing goods the court may order that they be placed outside the channels of commerc e, destroyed or confiscated.  This is provided for 
in Article 26 of the Law of 6 February 2001 on th e Protection of Industrial Designs, Article 36 of the 
Law of 6 February 2001 on the Protection of Layout -Designs of Integrated Circuits, and Article 55 of 
the Law of 17 April 2001 on the Protection of Trademarks.  
53. Please quote what provisions of your legislation authorize judges to indemnify a 
defendant in the event of abuse by the plaintiff. 
  It is for the defendant to bring action for compensation for injury suffered as a result of 
unreasonable and unjustified claims , and ordinary law provides for such action in the courts. 
  Article 50-4 of the draft law ame nding and supplementing Law No. 94-36 of 
24 February 1994 states that "subject to completion of  all customs formalities, the suspension of the 
release of the products shall be revoked automatically  if the author, holder of related rights or his 
representative has failed to provide the customs se rvices, within 10 days from notification of the 
suspension of the release of the products, with proof  of the following: […] Lodgement of a security 
[…] the amount of said security shall be set by the competent court".  The posting of security sufficient to cover his liability to the persons c oncerned in the event of it being subsequently 
established that the products in question do not infringe  copyright or related ri ghts would serve at least 
partly to guarantee any indemnification of the defe ndant decided by the courts under ordinary law and 
a priori discourage unreasonable and unjustified claims.   As regards industrial property, Articles 86 a nd 87 of the Law on Patents, Article 38 of the 
Law on the Protection of Layout-Designs of Integr ated Circuits, Article 28 of the Law on the IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 36 
 
 Protection of Industrial Designs and Article 50 of the Law on the Protection of Trademarks give the 
courts authority to indemnify the defendant in the event of the plaintiff abusing enforcement 
procedures.   
 The above Articles specify that where an action for infringement is brought before a court, the 
judge may, provisionally and on pain of a fine, pr ohibit the continuation of the allegedly infringing 
acts or make the continuation of such acts subject to  the provision of security designed to ensure the 
indemnification of any damage suffered by th e defendant if the action for infringement is 
subsequently deemed to be unfounded. 
 
54. Please explain how your legislation implem ents Article 50 of the TRIPS Agreement. 
 
In conformity with the TRIPS Agreement (i n particular Article 50), which empowers the 
judicial authorities to order prompt and effective provisional measures, generic legislation (ordinary 
law) provides, as mentioned above, th at interim orders and orders on ex parte  applications may be 
made for the adoption of appropriate provisional measures. 
 In order to prevent infringements of intellectua l property, Articles 213 to 223 of the Code of 
Civil and Commercial Procedure give the presiding judge  authority to serve an order on either party in 
a case following an ex parte  application, so as to ensure the protection of rights and interests that must 
not be left unprotected. 
 In cases of extreme urgency, judges may rule in  their private homes on questions submitted to 
them.  Enforcement of rulings issued in this manner is not subject to the appending of the seal of the 
court or " ad hoc " registration.  These formalities are completed later. 
 
Orders on ex parte  applications are exempted from the registration procedure and are enforced 
without delay by bailiffs.  A request for the wi thdrawal of such an order does not suspend 
enforcement.  
 
 To preserve relevant evidence, Article 86 of the Code of Civil and Commercial Procedure 
provides that "if it sees this as necessary, the court may ask the reporting judge to carry out any 
investigative action, such as an inquiry, visit to th e scene, expert’s report, taking of pleas of forgery 
and any other action that will help to establish the truth".  The judicial authorities may adopt 
provisional measures inaudita altera parte  if need be.  Article 207 of the Code thus specifies that "in 
cases of extreme urgency the court may order immediate enforcement before registration.  It may also 
order enforcement without prior service".  The judicial authorities may require the plaintiff to provide 
any reasonably available evidence.   Article 12 of the Code further stipulates that  "the court is under no obligation to gather, 
supplement or produce evidence in support of the parties'  claims".  It is for the plaintiff to produce the 
evidence.   
 
 The judicial authorities may order prior posting of security to protect the defendant from any abuse.  Paragraph 5 of Article 54-1 of the draf t law amending and supplementing Law No. 94-36 of 
24 February 1994 on Literary and Artistic Property thus provides that "under an order on an ex parte  
application, the president of the competent c ourt may require prior posting of security by the 
applicant".  
 Where provisional measures are adopted inaudita altera parte , the affected parties will be 
duly informed.  Such measures may be revoked if a decision on the merits of the case is not handed 
down within a reasonable period of time.  Ar ticle 54 (new) of the draft law amending and 
supplementing Law No. 94-36 of 24 February 1994 s tipulates that "the record shall include the date IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 37 
 
 and place of the identification or confiscation measur e and of the notice given to the infringer or his 
representative in person of the identified subject-ma tter of the infringement or of the confiscation 
measure, or, in the event of his absence, a copy of th e record shall be sent to him by registered mail.  
 
 The records of the identification of the infri ngement and the confiscation measure shall be 
sent within seven days to the Public Prosecutor, who shall forward the documents to the competent 
court for a ruling on the approval or revocation of the confiscation measure within a maximum period 
of one month from the date on which the confiscati on measure was carried out.  If the court does not 
rule on the confiscation within the time-limit spec ified, the confiscation measure shall be revoked 
automatically". 
 
 Where it is subsequently found that there has been no infringement or threat of infringement, ordinary law generally provides for compensation for any material and mo ral damage suffered and 
proceedings may be instituted to seek reparation for injury resulting from unreasonable and unjustified 
action. 
 
 In an action for infringement of a patented inve ntion, the court may, provisionally and on pain 
of a fine, prohibit the continuation of the allegedl y infringing acts or make the continuation of such 
acts subject to the provision of security designed to ensure the indemnification of the patent holder 
(Article 87 of the Law on Patents).  This is al so provided for in the Law on the Protection of 
Trademarks (Article 49). 
  Application for prohibition or the posting of security, as mentioned above, is admissible only if the action on the merits appears to be serious a nd is brought within a maximum of 30 days of the 
industrial property right holder becoming aware of the facts on which it is based. 
 
 The court may also make the prohibition subj ect to the posting by the applicant of security 
designed to ensure the indemnification of any da mage suffered by the defendant if the action for 
infringement is subsequently  deemed to be unfounded. 
 
55. Please identify the competent authorities in  your jurisdiction who receive requests from 
right holders for an application to suspend the release of counterfeit goods by the customs 
authorities.  
 Under Tunisian industrial property legislati on governing border measures, right holders may 
apply to the customs authorities for suspension of the release of counterfeit goods (Article 39 of the 
Law on the Protection of Layout-Designs of Integrat ed Circuits, Article 91 of the Law on Patents, 
Article 56 of the Law on the Protection of Trademar ks and Article 31 of the Law on the Protection of 
Industrial Designs).  
 
 The Order of the Ministry of Finance of 3 December 2001 establishing the form in which to 
apply in writing for the suspension of import clear ance for products bearing a counterfeit trademark 
and the procedures for lodging the application with the customs services specifi es that the application 
must be lodged with the Directorate-General of Customs in Tunis.  
The measure suspending the release of the products is revoked ipso jure , however, where the 
applicant fails to provide the customs services, wi thin 10 working days of being notified of the 
suspension, with proof that he has initiated civil or  criminal proceedings;  that precautionary measures 
have been ordered by the president of the competen t court;  and that security sufficient to cover the 
applicant's liability in respect of the persons concerned has been posted.  
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 38 
 
 
56. Please indicate whether or not procedures  are available to suspend the exporting of 
counterfeit goods.  
 None of the Tunisian industrial property provisions relating to border measures contains 
procedures for suspending the export of counterfeit goods. 
 
57. Please indicate whether or not your legislation provides for a de minimis  imports 
exception.  
 Tunisian industrial property legislation, in pa rticular Article 99 of the Law on Patents, Article 
47 of the Law on the Protection of Layout-Designs of Integrated Circuits, Article 39 of the Law on the 
Protection of Industrial Designs and Article 64 of the Law on the Protection of Trademarks, expressly 
specifies that the provisions relating to border measures do not apply to goods of a non-commercial 
nature in travellers' personal lugga ge, within the quantitative limits set by the laws and regulations in 
force.  
 
58. Please explain how your legislation implements Article 61 of the TRIPS Agreement.  
 
 In addition to the payment of civil damages, Ar ticle 52 of Law No. 94-36 of 24 February 1994 
on Artistic and Literary Property provides that copyri ght infringements are punishable by a fine of 500 
to 5,000 dinars.  The fine is doubled in the event of a repeat offence, with the possibility of a term of 
imprisonment of one to six months.  
Article 52 (new) of the draft law ame nding and supplementing Law No. 94-36 of 
24 February 1994 raises the fine to an amount rangi ng between 1,000 and 50,000 dinars.  The fine is 
doubled in the event of a repeat offence, with th e possibility of a term of imprisonment of one to 
12 months.  These penalties may be accompanied by  forfeiture of the infringing goods, their 
destruction and the temporary or definitive closur e of the establishment where the infringement was 
committed. 
 
As regards the authorities responsible for iden tifying infringements and instituting criminal 
proceedings, Article 54, paragraph 1, of Law No . 94-36 of 24 February 1994 specifies that "the 
identification of breaches of this Law and the drawi ng up of records of evidence are entrusted to the 
criminal investigation police authorities and offici als of the Ministry of Culture duly sworn and 
empowered for this purpose". 
 
Article 54 (new) of the draft law amending an d supplementing Law No. 94-36 extends these 
prerogatives to customs officials, officials responsib le for monitoring economic  activity and municipal 
regulatory officials. 
 The authorities may institute criminal proceedings  on their own initiative.  Thus, paragraphs 2 
and 3 of Article 54 (new) of the draft la w amending and supplementing Law No. 94-36 of 
24 February 1994 stipulate that "the above-men tioned officials may seize the necessary documents 
and take samples of the counterfeit products for the purposes of the investigation and to establish 
proof of the infringement, against receipt.  They may also seize, as a preventive measure, any products suspected to be counterfeit and not in accordance with current regulations".  
 Tunisian legislation provides for civil and crim inal proceedings and penalties in the event of 
infringement of industrial property rights.   Counterfeiting is punishable by a fine of 5,000 to 50,000 dinars (Article 51 of Law 
No. 2001-36 of 17 April 2001 on the Protection of  Trademarks, Article 24 of Law No. 2001-21 of 
6 February 2001 on the Protection of Industrial Designs and Article 83 of Law No. 2000-84 of IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 39 
 
 24 August 2000 on Patents);  or by a fine of 1,0 00 to 50,000 dinars for infringements relating to 
layout-designs of integrated circuits (Article 34 of Law No. 2001-20 of 6 February 2001 on the 
Protection of Layout-Designs of Integrated Circuits),  in addition to the fine of 500 to 2,000 dinars 
payable by anyone who causes to appear on his bus iness documents, advertising or products words 
that give reason to believe that a layout-design has been registered 
  It should also be noted that in all these cases of infringement repeat offenders will be liable to 
imprisonment for one to six months and the doubling of the fine.  
 In the event of conviction, the court may or der the infringing products to be destroyed or 
placed outside the channels of commerce and confis cated (Article 36 of the Law on the Protection of 
Layout-Designs of Integrated Circuits, Article 26 of the Law on the Protection of Industrial Designs 
and Article 55 of the Law on the Protection of Trademarks). 
 
 The seizure of counterfeit products is also pr ovided for in Article 86 of the Law on Patents, 
Article 38 of the Law on the Protection of Layout-D esigns of Integrated Circuits, Article 28 of the 
Law on the Protection of Industrial Designs a nd Article 50 of the Law on the Protection of 
Trademarks. 
 
IV. RESPONSES TO QUESTIONS POSED BY THE UNITED STATES 
A. G
ENERAL  
1. Please describe, in relation to each form of  intellectual property covered by the TRIPS 
Agreement, including plant variety protection, the manner in which national treatment and 
most favoured nation treatment are provide d to nationals of other WTO Members. 
 
 Article 101 of the Law on Patents, Article s 17 and 18 of the Law on the Protection of 
Trademarks, Article 5 of the Law on the Protection of Industrial Designs and Article 6 the Law on the 
Protection of Layout-Designs of Integrated Circuits stipulate that foreigners as well as Tunisian 
nationals may request protection for all aspects of i ndustrial property, provided that the principle of 
reciprocity applies.   
 This is also stipulated in Article 15, paragr aph 2, of Law No. 99-42 of 10 May 1999 on Seeds, 
Seedlings and Plant Varieties.   Article 57 of Law No. 94-36 of 24 February 1994  on Literary and Artistic Property specifies 
that foreign works "may enjoy protection on condit ion that the country concerned affords equivalent 
protection to works of Tunisian nationals". 
  The last paragraph of Article 56 (new) of  the draft law amending and supplementing Law 
No. 94-36 of 24 February 1994 further provides that "t he provisions of this Law relating to copyright 
shall apply to works eligible for protection under an international convention to which Tunisia is 
party". 
 
 Likewise, the last paragraph of Article 57 (n ew) of the draft law amending and supplementing 
Law No. 94-36 of 24 February 1994 stipulates that "t he provisions of this Law shall also apply to 
performances, phonograms or videogr ams and broadcasts protected unde r an international convention 
to which Tunisia is party". 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 40 
 
 B. 
COPYRIGHT AND RELATED RIGHTS  
2. Please explain whether and how the copyrigh t law of Tunisia complies with Article 9 of 
the TRIPS Agreement requiring that Members comp ly with all Articles 1 through 21 of the 
Berne Convention (1971), except Article 6bis, since Members do not have rights or obligations 
relating to the latter Article under the TRIPS Agreement. 
 
 Tunisia is one of the 10 countries that established the Berne Convention of 1886 and is also a 
Member of the WTO.  Article 9 of the TRIPS Agreement provides that "Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. 
 
 However, Members shall not have rights or oblig ations under this Agreement in respect of the 
rights conferred under Article 6 bis of that Convention or of the rights derived therefrom." 
 
Article 6 bis of the Berne Convention deals with authors' moral rights (right to claim 
authorship of a work;  right to object to certain  modifications of, and ot her derogatory action in 
relation to, the work;  term of protection;  and m eans of redress for safeguarding these rights).  Article 
2.2 of the TRIPS Agreement provides that "[n]othing in  Parts I to IV of this Agreement shall derogate 
from existing obligations that Members may have to  each other under the Paris Convention, the Berne 
Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits". 
 
 Thus, a WTO Member that is not party to the Berne Convention is not required to comply with the provisions of the Berne Convention relatin g to moral rights, whereas a WTO Member that is 
also party to the Berne Convention (which is the ca se of Tunisia) is under the obligation to apply those 
provisions. 
 
3. Please explain how the copyright law of Tunisia protects computer programs as literary 
works and complications of data as required  by Article 10 of the TRIPS Agreement. 
 
Protection of computer programs
 
 
 Article 1 of Law No. 94-36 of 24 February 19 94 on Literary and Artistic Property includes 
"software" (i.e. computer programs, as establis hed during the Law's preparatory stages) among the 
works covered by copyright.  All general provisions  relating to copyright, the rights it confers and the 
obligations it entails, the procedures for identifying infringements and the ensuing penalties thus apply 
to computer programs to the extent that they are not contrary to the provisions of Chapter VII on 
Software.  The following provisions are cited as examples: 
  (1) Copyright covers computer programs in both source and object code.   
 
  The presumed author of the computer program is the person under whose name the 
program has been released. 
 
 (2) Programs written by employees in the course of their duties belong to the employer.  
The Law on Scientific Research (Law No. 96-6 of 31 January 1996, as amended by Law No. 2000-68 of 17 July 2000 and its implementing rules and regulations) 
provides that government employees are entitled to various advantages and incentives 
in respect of the exploitation of the results of their research. 
  
 (3) Commissioned computer programs and re lated documentation are the property of the 
producer. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 41 
 
  (4)   The author of a computer program has an exclusive right to carry out, authorize or 
prohibit certain acts relating to his work (reproduction, communication to the public, 
broadcasting and adaptation). 
 
 (5) The author of a computer program en joys the economic and moral rights deriving 
from copyright.   
  (6) Authorization granted by the author must be in the form of a written contract 
containing a number of mandatory clauses.   
 
 (7) Economic rights may be assigned in part or in full.  Assignment of works not yet 
created is deemed null and void. 
  (8) Computer programs may be adapted only within the limits of the rights assigned by 
the author. 
  (9) Unless expressly so authorized, the user  of a legitimately acquired program may not 
produce any copies thereof other than a backup copy. 
  (10) The term of protection of co mputer programs under Law No. 94-36 of 
24 February 1994 is 25 years.  In accordan ce with the TRIPS Agreement, ratified by 
Law No. 95-6 of 23 January 1995, the draft law amending Law No. 94-36 has extended the term to 50 years.    
 
Protection of data compilations (or databases)
 
 
Data compilations (or databases) are implicitly protected under Articles 1 and 6 of Law 
No. 94-36 of 24 February 1994.  Article 6.2 of th e draft law amending this Law expressly provides 
that authors of works such as ency clopaedias or anthologies, folklore collections or databases which, 
by reason of the selection or arrangement of thei r contents, constitute intellectual creations are 
protected without prejudice to the rights of the authors of the original works.  
 
4. Article 11 of the TRIPS Agreement requires that rental rights for computer programs and cinematographic works be available.  Please  cite to the corresponding provision of the 
copyright law of Tunisia.  
 This matter is governed by Law No. 94-36 of  24 February 1994 on Literary and Artistic 
Property, which does not expressly refer to rental rights but does not exclude them. 
  Under Tunisian general legislation, "rental rights form part of the rights of the holder of a title 
of property ownership conferring an exclusive right  to use, enjoy and dispose of that property" 
(Article 17 of the Code of Property Rights).  Con sequently, the "owner" of a computer program or a 
cinematographic work is entitled to rent it.  Such  a provision has been ex pressly included in the 
special law on copyright and related rights.  Th us, Article 9-1 of the draft law amending and 
supplementing Law No. 94-36 of 24 February 1994, wh ich applies to all protected works, grants the 
author an exclusive right to exploit his work or to authorize its exploitation by third parties, by way of 
any of the following acts: 
 
 (a) Reproduction of the work;    (b) communication of the work to the public;  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 42 
 
  (c) any form of exploitation of the work in general on a physical medium, including rental 
of the original and copies thereof. 
 
5. Please state the length and terms of protect ion the copyright law of Tunisia provides for 
a work other than a photographic work or a work of applied art and cite to the relevant 
provision of law.  
 Article 18 of Law No. 94-36 of 24 February 19 94 on Literary and Artistic Property protects 
copyright for the author's lifetime and for 50 years counted from 1 January of the year following the 
author's death or of the date determined in a finding of presumed death or disappearance. 
  In the case of anonymous works, the term of  protection is counted from the date on which the 
work was made available to the public.  In the case of photographic works and computer programs, 
protection subsists for 25 years counted from the year in which the work was created. 
  
 The draft law amending and supplementing Law No. 94-36 of 24 February 1994 has unified 
the term of copyright protection, extending it to 50 y ears.  Article 18 (new) of the draft law amending 
and supplementing Law No. 94-36 of 24 February 1994  provides that "protection of authors' economic 
rights shall subsist for the lifetime of the author and for 50 years counted from 1 January of the year 
following the author's death or of the date determin ed in a finding of presumed death in the event of 
absence or disappearance". 
  In the case of works of joint authorship, protection subsists for 50 years counted from 
1 January of the year following the death of the last  surviving author or of the date determined in a 
finding of presumed death in the event of absence or disappearance. 
 
 In the case of anonymous or pseudonymous work s, protection subsists for 50 years counted 
from 1 January of the year following that in whic h the work was first published.  Copyright is 
exercised by the publisher or distributor of th e work.  Where a pseudonym does not conceal the 
author's identity from the public or where the author  of an anonymous or pseudonymous work reveals 
his true identity, the term of protection is th at provided for in paragraph 2 of this Article. 
 
 In the case of works published after the aut hor's death, protection subsists for 50 years 
counted from 1 January of the year following that in which the work was first published.  Copyright is 
exercised successively by the executor, heirs, spouse or any othe r heirs to whom the rights of the 
author accrue. 
 
  In the case of photographic works, Article 19 (new) stipulates that protection subsists for 
50 years counted from the date on which the work was created.  The same term is provided for 
software or computer programs (new Article 47).  In the case of cinematographic or audiovisual works, the term of protection is also 50 years counted from the date of the first lawful public performance of the work.  Where performance has not taken place, the term of protection is 50 years 
counted from the date on which the first reference copy was made (Article 42-1 of the draft law 
amending and supplementing Law No. 94-36 of 24 February 1994).  
6. Please describe the protection the copyrigh t law of Tunisia provides for performers, and 
the term of the protection. 
  Performers are protected under Tunisian general legislation and the Uruguay Round 
Agreements, ratified by Law No . 95-6 of 23 January 1995.   
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 43 
 
  The draft law amending and supplementing Law No. 94-36 of 24 February 1994 on Literary 
and Artistic Property contains speci fic provisions for the protection of  performers.  Under Article 47-3 
of the draft law, performers thus enjoy the following moral and economic rights:  
Moral rights
 
 
- A right, in respect of their sound or audiovisual performances, whether live or fixed 
on phonograms or videograms, to be identified as performers, except where the manner of use of the performance precludes such identification;  
 
- a right to oppose any distortion, mutilation or other modification of such performances 
that might be prejudicial to their reputation. 
   These rights are inalienable and impr escriptible, and may not be renounced. 
 
Economic rights
 
 
- A right of broadcasting or communication to the public of unfixed performances, 
except where the performances is al ready a broadcast performance; 
 
  - a right of fixation of an unfixed performance; 
 
- a right of direct or indirect reproduction  of their performances,  fixed on phonograms 
or videograms, in any manner or form whatsoever; 
 
- a right of distribution to the public of the original and copies of the fixation of their 
performances on phonograms or videograms, by means of sale or any other transfer of 
ownership; 
 
- a right of commercial rental to the public of the original and copies of the fixation of 
their performances on phonograms or vide ograms, even after these have been 
distributed by the performers themselves or with their authorization; 
 
- a right to make their performances fixed on phonograms or videograms available to 
the public by wire or wireless means, in su ch a way that members of the public may 
access the work from a place and at a time individually chosen by them. 
 
 These are exclusive rights of performers to aut horize the use, in full or in part, of their 
performances.   The term of protection of performers' economic  rights is 50 years counted from 1 January of 
the year following that in which the performance was fixed on a phonogram or videogram. 
 
7. Article 14.2 of the TRIPS Agreement provides that producers of phonograms are to 
enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.  Article 14.2 requires that producers of phonograms are to have the right to authorize or prohibit the commercial rental to the public of or iginals or copies of their phonograms.  Please 
describe how the copyright law of Tunisia implemen ts these obligations and indicate the term of 
protection.  
 In addition to the rental rights which are pr ovided under general legislation for computer 
programs, as mentioned above, and which also appl y to producers of phonograms, Article 47-5 of the IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 44 
 
 draft law amending and supplemen ting Law No. 94-36 of 24 February 1994 confers the following 
rights on producers of phonograms or videograms:  
- A right of direct or indirect reproduction of their phonograms or videograms, in any 
manner or form whatsoever; 
 - a right of distribution to the public of the originals and copies of their phonograms or 
videograms, by means of sale or any other transfer of ownership; 
 
- a right of commercial rental to the public of the originals and copies of their 
phonograms or videograms, even after these ha ve been distributed by the producers 
themselves or with their authorization; 
 - a right to make their phonograms or videograms available to the public by wire or 
wireless means, in such a way that memb ers of the public may access the work from a 
place and at a time individually chosen by them. 
 
  These are exclusive rights of producers of phonograms or videograms to authorize the use, in 
full or in part, of their phonograms or videograms.  
 The term of protection of the rights of pr oducers of phonograms or videograms is 50 years 
counted from the year following that in which th e phonogram or videogram was released or, failing 
such release, 50 years counted from 1 January of th e year following that in which the fixation of the 
phonogram or videogram took place.  
C. 
TRADEMARKS  
8. Please describe the subject matter that can comprise a trademark under the trademark 
law of Tunisia.  
 According to Article 2 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks, 
the following may be registered as trademarks: 
 
 - Denominations of all kinds such as words;   combinations of words;  family and 
geographical names;  pseudonyms;  letters;  numbers;  and acronyms; 
  - figurative signs such as drawings;  reliefs;  shapes, in particular that of the product or 
its packaging or those characterizing services;  arrangements;  and combinations of 
colours or hues; 
  - audio signals such as sounds and musical phrases.  
9. Please describe the procedure that must be  followed to register a trademark in Tunisia, 
citing the relevant provisions of the law, and describe the rights that the owner of a registered 
mark can exercise.    
 Article 7 of the Law on the Protection of Tr ademarks stipulates that applications for 
trademark registration must be filed with the indus trial property agency.  Every application must be 
accompanied by a file containing a number of docum ents and relevant data (Article 1 of Decree 
No. 2001-1603 of 11 July 2001).  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 45 
 
  Once all the requisite items have been deliver ed, the application is approved, validated and 
published in the agency's official bulletin within  a maximum period of 12 months counted from the 
date of filing (Article 9 of the Law).  
 Any interested party may challenge an app lication for trademark registration within two 
months of the date of its publication, wh ereupon a reconciliation procedure is initiated.  
 
If no objection is raised, the mark will be regist ered and published within a maximum period 
of 12 months following the regi stration date (Article 13). 
 
Pursuant to Articles 6, 21, 22 and 23 of the La w, trademark registration confers on its holder a 
right of ownership in that trademark.  Third pa rties may thus be prohibited from accomplishing the 
following acts:   
- Reproducing, using or affixing a protected mark; 
 - removing or modifying a protected mark;  
 - imitating a mark or using an imitated mark, for products or services identical or 
similar to those covered in the registration. 
 
10. Please provide the length and terms of pr otection that the trademark law of Tunisia 
provides for a trademark.    
 According to Article 6 of the Law on the Pr otection of Trademarks, trademark registration 
takes effect from the date of filing the applicati on and is valid for a period of 10 years, renewable 
indefinitely.  
D. 
GEOGRAPHICAL INDICATIONS  
11.  Please describe in detail how the laws of Tunisia provide for the recognition and 
protection of geographical indications required by Article 22.2 of the TRIPS Agreement, citing 
to the relevant provisions of law or regulation, and provide examples of geographical indications 
so protected.   
 Pursuant to Article 22.2 of the TRIPS Agre ement, Article 4 of Law No. 2001-36 of 
17 April 2001 on the Protection of Trademarks stipul ates that any sign liable to mislead the public as 
to the quality or geographical origin of a product or service may not be adopted as a mark or an 
element of a mark.   Article 5 of the Law also provides that any sign that infringes prior rights and in particular a protected appellation of origin may not be adopted as a mark.  
 Article 20 of Law No. 99-57 of 28 June 1999 on registered appellations of origin thus 
establishes that the industrial property authorities may not grant any trademark for a registered appellation of origin or an indication of source if th e trademark application is filed after the territory 
covered by the registered appellation of origin or the indication of source has been defined and made 
public.  12. Please describe in detail the manner in wh ich the higher level of protection required for 
wines and spirits under Article 23.2 of the TRI PS Agreement is implemented, citing to the 
relevant provisions of law or regulation, and provide examples of geographical indications for 
such products. IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 46 
 
 
 
 Law No. 99-57 of 17 April 1999 on registered a ppellations of origin and indications of source 
of agricultural products and Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks do 
not expressly provide for additional protection for wines and spirits. 
 
Article 5 of the Law on the Protection of Tradem arks does specify, however, that "any sign 
that infringes prior rights and in particular a prot ected appellation of origin may not be adopted as a 
mark". 
 
E. 
INDUSTRIAL DESIGNS  
13. Please describe the procedure that must be  followed to obtain protection for industrial  
designs, citing to the provisions of the law of Tunisia, and describe the nature of the protection 
provided.  
 Under Article 9 of Law No. 2001-21 of 6 February 2001 on the Protection of Industrial 
Designs, applications for industrial designs must  be filed with the industrial property agency. 
  All duly filed industrial designs are entered in the national register of industrial designs and 
published in the official bulletin of the industrial property agency within a period not exceeding nine 
months from the date of filing. 
 
 Article 15 of the Law provides that applicants may request the publication of their industrial 
designs to be postponed for a period of 12 months from the date of filing. 
  Pursuant to Article 8 of the Law, ownership in an industrial design ultimately belongs to the 
person who created the design.  In other words, filing is no more than a presumption of ownership 
which may be disproved.  
14. Please describe the procedure that must be followed to obtain protection for textile 
designs and cite to the relevant provisions of law or regulation.  
 There are no specific provisions for the protection of textile designs.  On the other hand, 
Tunisian legislation provides for postponement of th e publication of industrial designs filed, including 
those of the textile industry, for a period of 12 mont hs from the date of filing.  It also provides for 
collective filing, which applies to textile designs.  
F. 
PATENTS  
15. Please describe in detail the way in wh ich the patent law of Tunisia implements 
Article 27 of the TRIPS Agreement, indicating  any exceptions provided for, and including 
details regarding the protection for micro-or ganisms and non-biological and microbiological 
processes and plant varieties.  Please cite to the relevant provisions of the law.  
 Articles 1, 2 and 3 of Law No. 2000-84 of 24 August 2000 on Patents are in conformity with 
Article 27 of the TRIPS Agreement.    Article 1 states that any invention of a product or manufacturing process may be protected by a document referred to as a "patent", which is delivered by the industrial property agency. 
 
 According to Article 2, methods for therapeutic or surgical treatment of the human or animal 
body and diagnostic methods practised on the human or  animal body are not considered inventions.  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 47 
 
   Under the terms of Article 3, pa tents may be not delivered for pl ant varieties, animal breeds or 
essentially biological processes for the breeding of plan ts or animals, with the exception of medical 
biological processes, including micro-organisms and the products of such processes, which are 
patentable. 
  Inventions the publication or application of which would be contrary to morality, ordre 
public , public health or environmental protecti on are likewise excluded from patentability. 
 
16. Please describe in detail the rights provi ded patent holders under the patent law of 
Tunisia and cite to the relevant provisions of law.  
 Article 46 of Law No. 2000-84 of 24 August 2000 on  Patents provides that a patent confers an 
exclusive right of exploitation on its holder or hi s successors in title, meaning that the patent holder 
may prohibit third parties from performing the following acts: 
 
- Making, offering, placing on the market or  using a product which is the subject-matter 
of the patent, or importing or stocking a product for such purposes; 
  - using the manufacturing process that is the subject-matter of the patent; 
 
 - offering, placing on the market or using the product obtained directly by a process 
which is the subject-matter of the patent, or  importing or stocking a product for such 
purposes. 
 17. Please describe in detail any provisions in the laws of Tunisia permitting unauthorized use of a patent, citing to the relevant provisions of law, and describe in detail the conditions under which such use can occur.    
 Article 47 of the Law on Patents stipulates that the rights conferred by a patent do not extend 
to the following acts: 
 
 - Acts performed privately for non-commercial purposes;  
 - acts performed for experimental purposes relating to the subject-matter of the 
patented invention; 
 
 - the extemporaneous preparation for individual cases in a pharmacy of medicines on 
the basis of a medical prescription, or the acts relating to the medicines thus prepared; 
 
- the offer, importation, stocking or use, on Tunisian territory, of the patented product 
or the product obtained by a patented process, after the product has been lawfully 
placed on the market of any country by the patent holder or with his explicit consent; 
 
- acts required for the production of generi c drugs; products resulting from such acts 
may not be exploited for commercial purposes until the term of protection of the patent has expired; 
 
- the use of patented subject-matter on board  aircraft, land vehicles or foreign ships 
which temporarily or accidentally enter the airspace, territory or territorial waters of the Tunisian Republic.  
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 48 
 
 
18. What term of protection does the patent la w of Tunisia provide for patents?  Please 
describe any provisions for extension of the term of protection and cite to the relevant provisions of the law.  
 Article 36 of the Law on Patents specifies that patent protection subsists for 20 years from the 
date of filing the application.   Tunisian legislation does not provide for any extension of the term of patent protection. 
 
G. 
LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS  
19. Please describe in detail the protection for layout-designs of integrated circuits provided 
under the laws of Tunisia, including the term of protection, and cite to the relevant provisions of law.    
 Law No. 2001-20 of 6 February 2001 provides for the filing of layout-designs of integrated 
circuits with the industrial property agency.   Protection is afforded if a layout-design is the result of its creator's own intellectual effort and 
is not commonplace, at the time of its creation, in th e integrated circuits sector (Article 3 of the Law). 
 
 The filing of a layout-design confers an exclus ive right of exploitation on the owner, who may 
prohibit third parties from reproducing, exploiting or importing the layout-design without due authorization (Article 17 of the Law).   The protection of a layout-design of integrated circuits commences on the date of filing or on 
the date of the first commercial exploitation, where exploitation precedes the date of filing. 
   Under Article 18 of the Law, the term of protection of a layout-design is 10 years from the 
date of filing or that of the first commercial e xploitation, where exploitation precedes the date of 
filing.  
H. 
PROTECTION OF UNDISCLOSED INFORMATION  
20. Please describe in detail how the laws of Tunisia provide for the protection of 
undisclosed information as required by Articl e 39.2 of the TRIPS Agreement and provide 
citations to the relevant provisions of law.  
 
Protection is afforded under Article 168 of th e Labour Code, which states that members of 
company advisory committees and staff represen tatives are bound by the obligation of professional 
secrecy with respect to all information of a conf idential nature coming into their possession while 
serving in that capacity, and to all matters relating to manufacturing processes.  Any breach of this obligation entails the penalties laid down in  Articles 138 and 254 of the Penal Code. 
 
Article 138 of the Penal Code states that, in additi on to a fine, any manager, clerk or worker of 
a factory who discloses or communicates a manufacturing secret is liable to a prison sentence of two years.  Attempts to do so are also punishable.    Article 61 ter of the Penal Code stipulates that "any Tunisian or any foreigner who, without 
prior authorization from the competent authority,  discloses or communicates to a party acting on 
behalf of a foreign power or enterprise either an  invention of interest for national defence or 
information, research or manufacturing processes relati ng to an invention of interest for defence shall 
be guilty of a breach of State security".  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 49 
 
  
21. Please describe in detail the manner in whic h protection is provided test data regarding 
pharmaceutical and agricultural chemical produc ts submitted to the government in order to 
obtain marketing approval in Tunisia and cite to the relevant provisions of law. 
  Pharmaceuticals are governed by Laws Nos. 73-55 of 3 August 1973 and 85-91 of 
22 November 1985.  Implementing rules and regulations have been enacted, including: 
 
- Decree No. 90-1400 of 3 September 1990, laying down rules of good manufacturing 
practice for medicines for human use and regulating quality control, packaging, 
labelling, denominati on and advertising; 
 
- Decree No. 90-1401 of 3 September 1990 laying down procedures for medical or 
scientific testing of medicines for human use; 
 
- Order of the Minister of Public Health of 10 September 1996 establishing the 
procedures for authorization to market medicines for human use and renewal and 
assignment of such authorization. 
 
 The above texts, pursuant to the laws that gave  rise to them, provide that infringement will be 
subject to disciplinary sanctions and civil and criminal penalties. 
  The processing of applications relating to medi cines is governed by procedures and provisions 
that guarantee the security of information.  They are detailed as follows. 
 
Reception of applications
   
  This is handled by a pharmaceutical inspector  dealing directly with the person delegated by 
the laboratory filing the application.  The application, countersigned by  the inspector, is then returned 
to the person with an official filing date.      
 
Assessment of applications
   
  Applications are kept under the inspector's res ponsibility.  Pharmaceutical files are sent to the 
National Drug Control Laboratory, which determines wh ether the product is in conformity with what 
is stated in its file, in the light of current pharm aceutical knowledge.  Clinical files are submitted to an 
expert appointed by Ministerial order for a detailed report to an expert committee. 
 Assessment of products similar to registered products
   
  Data confidentiality is crucial at this stage, in  order to prevent the use of data recorded in 
another file.  
 
 In Tunisia, as in most countries with a reliabl e registration system, the procedure is based on 
the following: 
  - Clinical data pertaining to a molecule that  is the subject-matter of a second application 
is not required because the molecu le has already been analysed; 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 50 
 
 
- regulations require the product to be appr oved for marketing in its country of origin 
(Autorisation de mise sur le marché  - AMM);  where this is a country having signed 
the WTO Agreements, responsibility for ob servance of the provisions governing 
patents lies with the country of origin, if no application for a patent specific to another 
country has been filed;  where the country has not adhered to the WTO Agreements, it 
is for Tunisia to ensure observance of intellectual property provisions;  
 - application for marketing approval requir es submission of a pharmaceutical file, 
including analysis methods which must satisfy either of the following conditions:  
 
(a) where the product is described in an international pharmacopoeia, reference to 
the latter is sufficient to validate the methods used;  
 (b) if such is not the case, the supplier is required to present a method that he 
himself has validated without referring to the data furnished by the first holder 
of the marketing authorization. 
  
 Scientific publications may be used, however, for the relevant authority regards the results 
they contain as having become public knowledge at the initiative of the patent holder or of the 
international scientific community. 
 
 The procedure applied by Tunisia has been in force for more than 20 years, making it possible 
to avoid conflicts of interest and ensuring data confidentiality.  It has enabled the relevant authority to 
acquire the status of WHO Collaborating Centre fo r drug registration and pharmaceutical regulation. 
 
 All the aforementioned informa tion and references relating to regulations are public and can 
be accessed at:  www.dpm.tn
. 
 
22. Are other applicants for marketing appr oval for their own versions of a previously 
approved pharmaceutical or agricultural chemical products permitted to rely on data submitted 
by the earlier applicant?  If so, how long a peri od of exclusivity is given the earlier applicant 
before such reliance becomes possible? 
 
Application files differ according to whethe r the product is a first product or a generic 
product.  The entire body of clinical data specifie d by law is required only in the case of a first 
product. 
 
The data is evaluated by experts who are subj ect to a legal obligation of professional secrecy.  
The authorities themselves are also bound by secrecy, and no application file may be communicated 
or used on the submission of a second application. 
 Generic products may be exempted from th e requirement to submit clinical and 
pharmacological-toxicological files if the authorities deem that a sufficient period has passed, and the 
patent has expired.  If the authorities deem such f iles to be necessary, the laboratory is required to 
recompile all the data without referring to  the documentation for the first product. 
 It should be noted, however, that scientific data  published in periodicals can generally be used 
for filing first or second product applications, sinc e the data has become public knowledge at the 
initiative of the owner of the first product.  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 51 
 
 I. 
ENFORCEMENT  
23. Please describe in detail the manner in whic h the laws of Tunisia provide for effective 
action against infringement of intellectual proper ty rights as required by Article 41.1 of the 
TRIPS Agreement.  
  Provision is made for civil and criminal proceedings and penalties in the event of 
infringement of industrial property rights.   Counterfeiting is punishable by a fine of 5, 000 to 50,000 dinars (Article 51 of Law No. 2001-
36 of 17 April 2001 on the Protection of Trademarks , Article 24 of Law No. 2001-21 of 6 February 
2001 on the Protection of Industrial Designs and Article 83 of Law No. 2000-84 of 24 August 2000 on 
Patents);  or by a fine of 1,000 to 50,000 dina rs for infringements relating to layout-designs of 
integrated circuits (Article 34 of Law No. 2001- 20 of 6 February 2001 on the Protection of Layout-
Designs of Integrated Circuits), in addition to th e fine of 500 to 2,000 dinars payable by anyone who 
causes to appear on his business documents, advertising or products words that give reason to believe 
that a layout-design has been registered.   It should also be noted that in all these cases of infringement repeat offenders are liable to 
imprisonment for one to six months and the doubling of the fine.  
 Moreover, in the event of conviction the c ourt may order the infringing products to be 
destroyed or placed outside the channels of comme rce and confiscated (Article 36 of the Law on the 
Protection of Layout-Designs of Integrated Circ uits, Article 26 of the Law on the Protection of 
Industrial Designs and Article 55 of the Law on the Protection of Trademarks). 
 
 The seizure of counterfeit products is also pr ovided for in Article 86 of the Law on Patents, 
Article 38 of the Law on the Protection of Layout-D esigns of Integrated Circuits, Article 28 of the 
Law on the Protection of Industrial Designs a nd Article 50 of the Law on the Protection of 
Trademarks. 
 Literary and artistic intellectual property (copyright and related rights) is protected in Tunisia 
by the following: 
 - Ordinary law, i.e. general civil and crim inal legislation (Code of Obligations and 
Contracts, Commercial Code, Law on Comp etition and Prices, Code of Civil and 
Commercial Procedure, Penal Code, Code of Penal Procedure, Customs Code); 
 
- special ( sui generis ) legislation, specifically Law No. 94-36 of 24 February 1994 on 
Literary and Artistic Property, which provides, inter alia  for the following:  There is a 
presumption of infringement where the user of a work fails to produce the requisite authorization.  Any person who infringes copyright is liable to the payment of damages, as determined by the competent court, in addition to criminal penalties 
(fines and imprisonment for repeat offenders).  
  The competent court may order, ex officio or at  the request of the author, the confiscation or 
destruction of fraudulent copies and the temporary or definitive closure of the establishment in which 
the infringement has been ascertained. 
 
 The owner of an establishment open to the public in which an infringement has been 
committed (public showing, sale or rental of copies) who acted with full knowledge of the facts will 
be regarded as jointly and severally liable for making good the moral and material damage resulting 
from the use of fraudulent works. IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 52 
 
  
The identification of infringements is entrusted to  the criminal investigation police authorities 
and officials of the Ministry of Culture duly sw orn and empowered for this purpose by the Minister. 
 
 The purpose of the draft law is to establis h more effective measures and procedures for 
combating infringements of copyright and related rights,  in conformity with the letter and spirit of the 
TRIPS Agreement and the two WIPO Treaties (WCT and WPPT) of December 1996.  The draft law 
accordingly makes provision for:   
 - Adopting specific border measures and est ablishing procedures to guarantee the rights 
of the parties involved; 
  - extending authority to report infringements to other government bodies;  
 - strengthening criminal penalties. 
  As regards enforcement, Tunisian general legi slation contains provisions to ensure effective 
action against any infringement of the above righ ts, while guaranteeing the right of the defence. 
  The judicial authorities are thus empowered to take various types of decision in the form of 
interim orders, payment orders and final or other judgments. 
  
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as 
necessary, the court may ask the reporting judge to carry out any investigative action, such as an 
inquiry, visit to the scene, expert’s report, taking of  pleas of forgery and any other action that will help 
to establish the truth.  The court may, during the hear ing and in the presence of the parties, set the date 
for the investigative action so ordered, specifying th e date and time for the appearance of the parties in 
the chambers of the reporting judge or at the location of the dispute or any other location". 
 Article 225 of the Code states that "in any event, the court may require ex officio the 
participation of a third party in the proceedings wh ere it sees the presence of that party as essential for 
a correct appreciation of the matter at issue".   
 If it is necessary to obtain an expert's report and the parties fail to agree on the selection of the 
expert, the expert is appointed by the judge. 
   
Interim orders
 
  Article 201 of the Code of Civil and Commerc ial Procedure (CCCP) states as follows:   
  "Interim orders may be made on urgent ap plications without prejudice to the main 
proceedings." 
 
 "Interim orders on urgent applications may be  made by the president of the court of first 
instance or his deputy, or by the district judge, where so authorized by law" (Article 202 of the CCCP).  
"Interim orders made on urgent applications  are enforceable 24 hours after being served, 
except where the court has granted an extension.   
 The order shall be enforced without security, un less the judge has ordered that security be 
provided" (Article 207 of the CCCP). 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 53 
 
 Payment orders
 
  Under the terms of Article 59 of the CCCP, any claim for the payment of a debt, where the 
latter, whatever its nature, is for a specific am ount and has a contractual origin, may be submitted 
under the payment order procedure. 
 Judgments
 
  The CCCP establishes three judicial levels, i. e. first instance, appeal and cassation.  The 
judgment will not be final if the decision can be appealed.  However, it may still be made immediately 
enforceable, with or without security, depending on the circumstances of the case (Articles 126 and 
286 of the CCCP).  Final judgments
 
 
 The final judgment (after appeals have been exhausted or the time-lim its for lodging appeals 
have expired) brings the case to a close by decidi ng the question forming the subject-matter of the 
proceedings.   
24. Article 43.1 of the TRIPS Agreement requires that judges be authorized to order 
production of evidence necessary to substantiate  a party's claims where that party has been 
unable to obtain such evidence from the opposi ng party.  Please describe how the laws or 
regulations of Tunisia provide this authorization, citing to the relevant provisions of law or regulation.  
Pursuant to Article 43 of the TRIPS Agreement,  Tunisian legislation empowers the judicial 
authorities to order a party in proceedings, on a pplication by the opposing party, to produce the 
evidence lying in its control. 
 Articles 213 to 223 of the Code of Civil and Commercial Procedure give the presiding judge 
authority to serve an order on either party in a case following an ex parte  application, so as to ensure 
the protection of rights and interests that must not be left unprotected. 
 In cases of extreme urgency, judges may rule in  their private homes on questions submitted to 
them.  Enforcement of rulings issued in this manner is not subject to the appending of the seal of the 
court or " ad hoc " registration.  These formalities are completed later. 
 
Orders on ex parte  applications are exempted from the registration procedure and are enforced 
without delay by bailiffs.  A request for the wi thdrawal of such an order does not suspend 
enforcement.   
Article 101 of the Code stipulates that "if it is necessary to obtain an expert's report and the 
parties fail to agree on the selection of the expe rt, the expert is appointed by the judge". 
   
25. Please describe in detail all of the civil remedies that are available to right holders under 
the laws of Tunisia, citing to the relevant provisions of law or regulation.  
 Under Articles 82 and 83 of the Code of Ob ligations and Contracts (COC), anyone who 
knowingly or deliberately causes material or moral damage to others must make good the damage, where it is established that his action was the direct cause.   Along these same lines, Article 51 of Law No. 94 -36 of 24 February 1994 on Literary and 
Artistic Property stipulates that anyone who infri nges copyright as set forth in this Law will be IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 54 
 
 required to pay the copyright owner damages for material and moral injury caused, in the amount determined by the competent court.  The draf t law amending and supplementing Law No. 94-36 
extends these provisions to include related rights.  
 The following civil remedies are available to right holders under Tunisian law: 
  - Injunctions;   - damages, including recovery of profits , and expenses, including lawyer's fees; 
 
- destruction or other disposal of infringing goods and materials/implements for their 
production; 
  - any other remedies.  
Injunctions
 
  The judicial authorities are empowered to take va rious types of decision in the form of interim 
orders, payment orders and judgments. 
 
Interim orders
 
  Article 201 of the Code of Civil and Commerc ial Procedure (CCCP) states as follows:   
  "Interim orders may be made on urgent ap plications without prejudice to the main 
proceedings." 
  "Interim orders on urgent applications may be  made by the president of the court of first 
instance or his deputy, or by the district judge, where so authorized by law" (Article 202 of the CCCP).  
"Interim orders made on urgent applications  are enforceable 24 hours after being served, 
except where the court has granted an extension.   The order will be enforced without security , unless the judge has ordered that security be 
provided" (Article 207 of the CCCP). 
 
Payment orders
 
  Under the terms of Article 59 of the CCCP, any claim for the payment of a debt, where the 
latter, whatever its nature, is for a specific am ount and has a contractual origin, may be submitted 
under the payment order procedure. 
 
Judgments
 
  The judgment will not be final if the decision can  be appealed.  However, it may still be made 
immediately enforceable, with or without security, depending on the circumstances of the case 
(Articles 126 and 286 of the CCCP). 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 55 
 
 Final judgments
 
  The final judgment brings the case to a clo se by deciding the question forming the subject-
matter of the proceedings. 
 
Damages, including recovery of profits , and expenses, including lawyer's fees
 
  Under Articles 82 and 83 of the Code of Ob ligations and Contracts (COC), anyone who 
knowingly or deliberately causes material or moral damage to others must make good the damage, 
where it is established that his action was the direct cause. 
  Article 82 of the Law on Patents, Article 34 of the Law on the Protection of Layout-Designs 
of Integrated Circuits, Article 24 of the Law on th e Protection of Industrial Designs and Article 44 of 
the Law on the Protection of Trademarks likewise provide for the civil liability of the infringer. 
 
Destruction or other disposal of infringing go ods and materials/implements for their production
 
  According to Article 55 of the Law on the Prot ection of Trademarks, Article 36 of the Law on 
the Protection of Layout-Designs of Integrated Circ uits and Article 26 of the Law on the Protection of 
Industrial Designs, if the court finds against the de fendant it may order the destruction or disposal 
outside the channels of commerce of the products or  goods found to be infringing and the forfeiture of 
the implements used to make them.  Any other remedies
 
 
 Under Article 34 of the Law on the Protection of Layout-Designs of Integrated Circuits, 
Article 24 of the Law on the Protection of Indus trial Designs and Article 54 of the Law on the 
Protection of Trademarks, in every case the court may order, at the expense of the unsuccessful party, the ruling to be published, in full or in part, in ne wspapers of its own choosin g and to be posted up in 
places of its choice, in particular at the main gates of factories or workshops of that party or in the party's shop windows. 
 
26.  Please describe in detail the provision al procedures and remedies available to right 
holders under the laws of Tunisia, citing to th e relevant provisions of law and regulation, and 
indicate any condition under which a right holder may avail itself of those procedures and 
remedies. 
  As regards copyright, ordinary law pr ovides for interim orders and orders on ex parte  
applications, as explained above (see reply to th e question on enforcement of intellectual property 
rights) to ensure the adoption of appropriate provisional measures.  
 Article 55 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property empowers 
the competent court to order, ex officio or at the request of the author, the confiscation or destruction 
of copies and the temporary or definitive closure of the establishment in which the infringement has 
been ascertained. 
  
 Article 54-1 of the draft law ame nding and supplementing Law No. 94-36 of 
24 February 1994 provides that "the right holder or his representative may, as a preventive measure 
and under an order made by the president of the court on an ex parte  application, have a bailiff 
assisted by an expert undertake a detailed descrip tion, with or without attachment, of allegedly 
counterfeit goods that infringe copyright or related rights". 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 56 
 
  As stipulated in Article 201 of the Code of Civil and Commercial Procedure, "interim orders 
may be made on urgent applications wit hout prejudice to the main proceedings". 
   As regards industrial property rights, La w No. 2000-84 of 24 August 2000 on Patents 
provides for a detailed description, with or without attachment, of the allegedly infringing products or 
processes by a bailiff assisted by an expert, under an order made by the president of the court on an ex 
parte  application.  In the event of attachment, the order may require the applicant to furnish security, 
which must be posted before the goods are attached.  
 Similar measures are provided for in:  
  - Law No. 2001-20 of 6 February 2001 on the Protection of Layout-Designs of 
Integrated Circuits (Article 38); 
 
 - Law No. 2001-21 of 6 February 2001 on the Protection of Industrial Designs 
(Article 28);  and 
 
 - Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks (Article 50). 
 
 Such measures may also be ordered because of urgency or difficulties relating to the 
enforcement of a judgment delivered or a writ of execution.  They are made by the president of the 
competent court or his deputy sitting in chambers , in accordance with Articles 201 and 210 of the 
Code of Civil and Commercial Procedure. 
 
 As regards procedures, an action is initiated under the interim procedure by ex parte  
application to the president of the competent court,  who may prohibit, provisionally and on pain of a 
fine, the continuation of the allegedly infringing acts or make such continuation subject to the 
provision of security designed to ensure the indemnif ication of the owner of the mark or the holder of 
an exclusive right (Article 49 of the Law on the Protection of Trademarks).   This procedure is also provided for in the la ws on patents (Article 87), layout-designs of 
integrated circuits (Article 38) and industrial designs (Article 28). 
 
J. 
SPECIAL REQUIREMENTS RELATED TO BORDER MEASURES  
27. Please describe in detail the procedures under the laws of Tunisia that provide for 
border enforcement at least for trademark counter feiting and copyright piracy, identifying the 
competent authority and citing to the relevant provisions of law or regulation.   
Types of intellectual property covered by border measures
 
 
 In addition to covering counterfeit trademark and pirated copyright goods (draft law in 
preparation), the scope of applications for suspension by customs of the release into free circulation of 
goods infringing intellectual property rights has been extended to include: 
  - Goods that infringe a patent;   - goods incorporating a counterfeit industrial design; 
 
 - goods incorporating a copied layout-design of an integrated circuit.  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 57 
 
 Competent authorities
 
  Patent holders, creators of layout-designs of in tegrated circuits and owners of protected 
industrial designs or registered trademarks or their successors in title who have good grounds for 
suspecting that goods that infringe their rights are being imported may apply in writing to the customs 
services for the suspension of import clearance for these goods.  Application requirements
 
 
 Under the provisions in force, the application must include: 
  - The full name/business name and address of the applicant;   - evidence that the applicant is the holder of a right in the goods at issue; 
 
 - a description of the goods detailed enough to enable customs to recognize the goods. 
  In addition, the applicant should provide any other useful information that might enable the customs services to reach an informed decision, a lthough the provision of such information is not a 
prerequisite for the admissibility of the application.   
 
 In particular, such information should relate to:   - The location of the goods or their intended destination;  
 - the identification of the consignment or packages; 
  - the estimated date of arrival or warehousing of the goods;   - the means of transport used;  
 - the identity of the importer, exporter or holder of the goods. 
  The application must also include an undert aking by the applicant to assume liability in 
respect of the importer if it is formally establishe d that the goods detained by customs do not infringe 
the protected industrial property right. 
 
 The applicant must inform the customs services if his right is no longer validly registered or has expired.   An order issued by the Ministry of Finance on 3 December 2001 (regulation) specifies where (General-Directorate of Customs) and when (prior to the arrival of the goods at, or their removal from, 
the customs office) the application must be filed an d the persons authorized to lodge the application 
(right holder or his successors in title).  Applicants  residing abroad are required to appoint an agent 
established in Tunisia.   The order also specifies the form in which a pplications must be lodged.  Applications are 
valid for a period of 12 months from the date on wh ich the customs services notified their acceptance. 
  If possible, the above information should also  include a detailed description of the goods at 
issue, together with a photographic or any other graphic reproduction as well as a sample of the goods. 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 58 
 
  The order stipulates that where the goods at issu e are detained by customs, the applicant is to 
be informed by mail, fax or any other means of telecommunication.   Various requirements relating to the duration of suspension
 
 
 Where the customs services find, if necessary af ter consulting the applicant, that the goods 
correspond to those described in the applicati on, they will proceed to detain those goods. 
  The customs services will immediately inform  the applicant and the importer of the action 
taken and give them the opportunity to inspect the goods detained and take samples for the purpose of 
carrying out any tests or analyses needed to establis h the existence of an infringement, in accordance 
with the provisions of the Customs Code and without  prejudice to the principle of confidentiality of 
information.  
 Provided that all the customs formalities have  been satisfied, the measure suspending the 
release of the goods is revoked ipso jure , unless within 10 working days of being notified of the 
detention of the goods the applicant can show to th e satisfaction of the customs services that he has 
initiated civil or criminal proceedings before the competent court;  that precautionary measures have 
been ordered by the president of the court;  and that  security sufficient to cover his liability in respect 
of the persons concerned has been posted.  The amount of the security is fixed by the court. 
 
 Where appropriate, the above-mentioned initial period  may be extended by a maximum of 
10 working days.   Moreover, the owner of the goods, the importer or  the consignee may obtain the release of the 
goods by posting security in an amount fixed by the court and sufficient to protect the interests of the 
applicant, provided that all th e customs formalities are satisfied. 
  If the detention measure is discharged, the cu stoms services will promptly inform the owner, 
the importer, the consignee and the applicant.  
Security or equivalent assurance and indemnifica tion of the importer and of the owner of the goods
 
 
 The measure suspending the release of the goods is revoked ipso jure , unless within 
10 working days of being notified of the deten tion of the goods the applicant can show to the 
satisfaction of the customs services that he has in itiated civil or criminal proceedings before the 
competent court;  that precautionary measures have been ordered by the president of the court;  and 
that security sufficient to cover his liability in resp ect of the persons concerned has been posted.  The 
amount of the security is fixed by the court.   The owner of the goods, the importer or the c onsignee may obtain the release of the goods by 
posting security in an amount fixed by the court and su fficient to protect the interests of the applicant, 
provided that all the customs formalities are satisfied. 
  Moreover, where the application has been accepted or where detention measures have been taken, the customs services may require the applican t to post security sufficient to ensure payment of 
the costs incurred as a result of keep ing the goods under customs control. 
 
Right of inspection and information
 
  Upon receipt of an application drawn up in  accordance with the provisions governing the 
lodging of applications, the customs services will ex amine the application and immediately inform the 
applicant of their decision in writing.  The reasons for the decision must be duly given. IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 59 
 
   Where the customs services find, if necessary af ter consulting the applicant, that the goods 
correspond to those described in the applicati on, they will proceed to detain those goods. 
 
 The customs services will immediately inform  the applicant and the importer of the action 
taken and give them the opportunity to inspect the goods detained and take samples for the purpose of 
carrying out any tests or analyses needed to establis h the existence of an infringement, in accordance 
with the provisions of the Customs Code and without  prejudice to the principle of confidentiality of 
information. 
 
 Upon production of an order made by the president of the court on an ex parte  application and 
in order to facilitate the initiation of legal proceedin gs, the customs services wi ll inform the applicant 
of the full names and addresses of the exporter, the importer and the consignee of the goods, if they 
are known to them, as well as of the quantity of the goods forming the subject of the application. 
 
28.  Please indicate if border enforcement is avai lable to owners of other forms of intellectual 
property and, if so, please describe the proce dures and remedies available in relation to each 
form of intellectual property, citing the relevant provisions of law.  
 In addition to covering counterfeit trademark a nd pirated copyright goods (draft law in the 
process of being adopted in Parliament), the scope of applications for suspension by customs of the 
release into free circulation of goods infringing intellectual property rights has been extended to include:   - Goods that infringe a patent; 
 
 - goods incorporating a counterfeit industrial design;   - goods incorporating a copied layout-design of an integrated circuit.   The procedures relating to border measures, as  described in the reply to question 27 above, 
fully apply to these various fo rms of intellectual property. 
  The statutory provisions covering border measures are set forth in:   - Chapter VII of Law No. 2001-20 of 6 Fe bruary 2001 on the Protection of Layout-
Designs of Integrated Circuits (Articles 39 to 48); 
  - Chapter V of Law No. 2001-21 of 6 February 2001 on the Protection of Industrial 
Designs (Articles 31 to 40); 
  - Chapter XIII of Law No. 2000-84 of 24 A ugust 2000 on Patents (Articles 91 to 99); 
 
 - Chapter VII of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks 
(Articles 56 to 65). 
 
29. Article 58 of the TRIPS Agreement specifies procedures to be followed where the 
competent authorities can act ex officio.  Plea se explain whether the competent authorities in 
Tunisia are empowered to act ex officio and, if so, please identify the intellectual property areas 
subject to ex officio action.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 60 
 
  The customs services may on their own initia tive suspend customs clearance of goods that 
infringe a protected industrial property right.  In this case:   - The customs services will immediately in form the right holder or his successors in 
title, who must lodge an application in  accordance with the above-mentioned 
application procedure within three days of being notified by the customs services, whereupon the provisions concerning suspension will apply ipso jure ; 
  - a detention measure applied in the contex t of ex officio action taken by the customs 
services will automatically be discharged if the holder of the protected industrial 
property right or his successor in title fails to lodge an application in accordance with 
the application procedure within three days of being notified by customs. 
 
 Ex officio action may be taken in respect of allegedly infringing goods in the following fields 
of intellectual property: 
  - Patents (Article 97 of Law No. 2000-84 of 24 August 2000 on Patents); 
  - trademarks (Article 62 of Law No. 2001- 36 of 17 April 2001 on the Protection of 
Trademarks); 
 
 - layout-designs of integrated circuits (A rticle 45 of Law No. 2001-20 of 6 February 
2001 on the Protection of Layout-Designs of Integrated Circuits); 
  - industrial designs (Article 37 of La w No. 2001-21 of 6 February 2001 on the 
Protection of Industrial Designs). 
 
K. 
CRIMINAL PROCEDURES  
30. Please describe in detail how the laws of Tunisia implement Article 61 of the TRIPS 
Agreement that requires Members to have cri minal procedures and penalties, including 
imprisonment and/or monetary fines sufficient to act as a deterrent, at least for cases of wilful 
trademark counterfeiting and copyright infringement  on a commercial scale.  Please cite to the 
relevant provisions of law and regulation.  
 In addition to reparation for damage in ci vil proceedings, Article 52 of Law No. 94-36 of 
24 February 1994 on Literary and Artistic Prope rty provides that copyright infringements are 
punishable by a fine of 500 to 5,000 dinars.  The fine is doubled in the event of a repeat offence, with 
the possibility of a term of imprisonment of one to six months.  
Article 52 (new) of the draft law ame nding and supplementing Law No. 94-36 of 
24 February 1994 increases the fine to an amount ra nging between 1,000 and 50,000 dinars.  The fine 
is doubled in the event of a repeat  offence, with the possibility of a term of imprisonment of up to 
12 months. 
 As regards the authorities responsible for iden tifying infringements and instituting criminal 
proceedings, Article 54, paragraph 1, of Law No . 94-36 of 24 February 1994 states that "the 
identification of breaches of this Law and the drawi ng up of records of evidence are entrusted to the 
criminal investigation police authorities and offici als of the Ministry of Culture duly sworn and 
empowered for this purpose".  Article 54 (new) of the draft law amending and supplementing Law 
No. 94-36 extends these prerogatives to customs offi cials, officials responsible for monitoring 
economic activity and municipal regulatory officials. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 61 
 
 
The authorities may institute criminal proceedings  on their own initiative.  Thus, paragraphs 2 
and 3 of Article 54 (new) of the draft la w amending and supplementing Law No. 94-36 of 
24 February 1994 stipulate that "the above-men tioned officials may seize the necessary documents 
and take samples of the counterfeit products for the purposes of the investigation and to establish 
proof of the infringement, against receipt.  They may also seize, as a preventive measure, any products 
suspected to be counterfeit and not in accordance with current regulations". 
 
 Anyone who infringes the rights of the owner of a duly registered mark is subject to criminal 
proceedings and penalties. 
 
 Moreover, Article 51 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks 
provides for a fine of 5,000 to 50,000 dinars.  The fine  is doubled in the event of a repeat offence, with 
the possibility of a term of imprisonment of one to six months (Article 53 of the Law).  31. Article 61 also requires that remedies in a ppropriate cases include the seizure, forfeiture 
and destruction of infringing goods and any ma terials and implements the predominant use of 
which has been the commission of the offence.  Please describe the provisions in the laws of Tunisia that provide for such remedies, and d escribe the circumstances in which those remedies 
would be imposed, citing to the relevant provisions of law or regulation.  
Copyright
  
  Article 55 of Law No. 94-36 of 24 February 1 994 on Literary and Artistic Property provides 
that the competent court may order, ex officio or at the request of the author, the confiscation or 
destruction of fraudulent copies and the temporary or definitive closure of the establishment in which 
the infringement has been ascertained.  The owner of the establishment wher e the infringement has 
been committed will be regarded as jointly and sever ally liable with the principal offender for making 
good the damage.   Criminal penalties for infringement of indus trial property rights also include seizure, 
forfeiture or destruction of the infringing goods and of the materials and implements used for making 
them. 
 Layout-designs of integrated circuits
 
 
 Pursuant to Article 36 of the Law of 6 February  2001, if the court finds against the defendant 
it may order the destruction of the infringing goods  or their disposal outside the channels of 
commerce, together with the forfeiture of the impl ements used for making them.  The injured party 
may, even before publication of the registrati on, cause a detailed description, with or without 
attachment, of the infringing articles or implements  to be undertaken, under an order made by the 
president of the competent court on an ex parte  application and production of the registration 
certificate (Article 38). 
 
Industrial designs  
  According to Article 26 of the Law of 6 Fe bruary 2001, if the court finds against the 
defendant it may order the forfeiture of the implem ents used for making the infringing articles. 
 
 The injured party may have a bailiff undertake a detailed description, with or without 
attachment, of the infringing articles or implemen ts under an order made by the president of the 
competent court on an ex parte  application and production of pr oof of registration (Article 28). 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 62 
 
 Trademarks
 
 
 Anyone who brings an infringe ment action under Article 48 of the Law of 17 April 2001 may, 
in any place and under an order made by the president of the competent court on an ex parte  
application, have a bailiff assisted by an expert attach goods or services allegedly marked, offered for 
sale, delivered or supplied to his detriment or in violation of his rights. 
   Where attachment is authorized, it will be c onfined to the seizure of samples necessary to 
prove the infringement.  The president of the court may make attachment subject to the provision by 
the applicant of security sufficien t to compensate for any injury suffered by the defendant if the 
infringement action subsequently proves to be unfounded (Article 50).   
  The court may order the forfeiture of the goo ds and of the implements used for committing 
the offence.  It may also order the destruction of the goods (Article 55). 
 
Indications of source a nd appellations of origin
 
 
 The officers responsible for monitoring appellatio ns of origin and indications of source may 
seize products put on sale under registered appella tions of origin or indications of source and 
suspected of not coming from the geographical area designated by the appellation or indication.   
 
 They may also seize products coming from the geographical area designated by the appellation or indication but not meeting the speci fied technical production requirements (Article 30 
of Law No. 99-57 of 28 June 1999).  
Patents
 
  Anyone entitled to bring an infringement action may, under an order made by the president of 
the court on an ex parte  application, have a bailiff assisted  by an expert undertake a detailed 
description, with or without attachment, of  the allegedly infringi ng goods or processes. 
 
 Where attachment is authorized, it will be conf ined to the seizure of any samples necessary to 
prove the infringement.  The order may require th e applicant to provide security, which must be 
posted before any goods are seized (Article  86 of Law No. 2000-84 of 24 August 2000). 
  
32. Article 61 also indicates that Members may provide for criminal procedures and 
penalties in cases of wilful infringement of oth er forms of intellectual property.  Please describe 
any provisions of the laws of Tunisia that provide for such procedures and remedies, citing to the relevant provisions of law or regulation.  
 The procedures and penalties for infringement of  copyright and related rights are the same as 
those described in the reply to question 30 above (K.  Criminal Procedures).  
 
 Tunisian legislation provides that in all fields of industrial property, i.e. patents, trademarks, 
industrial designs and layout-designs of integrated ci rcuits, the court may order, at the expense of the 
unsuccessful party, the ruling to be posted up in places of its own choosing and to be published, in full 
or in part, in newspapers of its choice.   The relevant provisions are as follows: 
 
 - Article 34 of Law No. 2001-20 of 6 Febr uary 2001 on the Protection of Layout-
Designs of Integrated Circuits; 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 63 
 
  - Article 24 of Law No. 2001-21 of 6 Februa ry 2001 on the Protection of Industrial 
Designs; 
  - Article 54 of Law No. 2001-36 of 17 April 2001 on the Protection of Trademarks. 
 
L. 
STATISTICAL QUESTIONS  
33.  Please provide statistical information related  to civil copyright, trademark, geographical 
indication, industrial design, patent, integrated circuit layout-design, and trade secret enforcement for 2000, including the number of cases filed; injunctions issued; infringing 
products seized; infringing equipment seized; cases resolved (including settlement); and the 
amount of damages awarded.  
 A commission made up of the various authorities concerned with copyright (Ministries of the 
Interior, Justice, Trade and Culture) was established in order to coordinate activities to be conducted 
in this field.  Model contracts for the use of  works protected by copyright were drawn up. 
   An awareness-raising campaign was c onducted among users and in the press. 
  Several disputes were resolved through frie ndly settlement.  Various copyright proceedings 
were instituted, but no figures are yet available. 
 
 There are no statistics available on civil enforcement in 2000.   
34.  Please provide statistical information rel ated to criminal enforcement in the area of 
copyright piracy and trademark infringement  for 2000, including the number of raids, 
prosecutions, convictions, and the amount of fine s and/or jail terms (including whether the fines 
were paid and whether the jail term was actu ally served or was suspended) and any other 
information establishing that the criminal system operates effectively to deter copyright piracy 
and trademark counterfeiting.  
 
 There are no statistics available on criminal enforcement in 2000. 
 
V. RESPONSE TO THE QUESTION POSED BY JAPAN 
C
OPYRIGHT AND RELATED RIGHTS  
 
1.  Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbo uring Rights Law, if any, as permitted in 
Articles 3 and 4 of the TRIPS Agreement. 
 
 The above principles apply in Tunisia, which abides by its international commitments and monitors compliance with these principles, while taking into account the principle of reciprocity 
enshrined in Article 32 of the Tunisian Constitution,  which provides that lawf ully ratified conventions 
have primacy over national laws, provided that they  are applied by the other party.  That same 
principle is confirmed in Article 57 of Law No. 94-36 of 24 February 1994 on Literary and Artistic 
Property, which states that foreign works "are elig ible for protection on condition that the country 
concerned affords equivalent protecti on to works of Tunisian nationals". 
  
 The last paragraph of Article 56 (new) of  the draft law amending and supplementing Law 
No. 94-36 of 24 February 1994 further provides that "t he provisions of this Law relating to copyright 
shall apply to works eligible for protection under an international convention to which Tunisia is 
party". IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 64 
 
   Likewise, the last paragraph of Article 57 (n ew) of the draft law amending and supplementing 
Law No. 94-36 of 24 February 1994 stipulates that "t he provisions of this Law shall also apply to 
performances, phonograms or videogr ams and broadcasts protected unde r an international convention 
to which the Tunisian State is party". 
 
VI. RESPONSES TO QUESTIONS POSED BY SWITZERLAND 
A. P
ATENTS  
1. Does your legislation grant patent protectio n for inventions relating to products and 
processes in all fields of technology?  Are there an y exceptions?  If so, please explain what these 
exceptions are and how they comply  with Article 27 of the TRIPS Agreement.  In particular, is 
patent protection granted to all pharmaceutical products? 
 
The legislation on the protection of inventio ns, in particular the first Article of Law 
No. 84-2000 of 24 August 2000, states that "any inve ntion of a product or manufacturing process may 
be protected by a document referred to as a ‘patent’".  
According to Article 2, all that is required is  that the invention meets a number of conditions, 
i.e. novelty, inventiveness and industrial applicability.  
In other words, a patent may be issued for any invention of a product or manufacturing 
process in all fields of technology, including pharmaceutical products and agricultural chemical 
products.  
However, there are a number of exceptions which are compatible with Article 27:1.  Article 3 
of the above-mentioned Law states that patents may not  be granted for plant varieties, animal breeds 
or essentially biological processes for the production of plants or animals. This provision does not, however, apply to medical biological processes or the products obtained through such products. 
 
Ad reply to question 1
: 
 
 You mention that according to your Law, pl ant varieties shall be excluded from patent 
protection.  Please explain how your legislation pr ovides for protection of plant varieties.  Is it 
by a sui generis  protection as referred to in Article 27.3(b) of the TRIPS Agreement? 
 
 For the purposes of plant protection, Tunisi a has enacted Law No. 99-42 of 10 May 1999 on 
Seeds, Seedlings and Plant Varieties. 
  This Law establishes a sui generis  protection system for plant va rieties, which is consistent 
with the UPOV model law.  
2. Does your legislation, in accordance with Ar ticle 27:1 in combination with Article 31 of 
the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude 
compulsory licensing, if a product is being imported)? 
 
The legislation recognizes, in accordance with Ar ticle 27:l in combination with Article 31 of 
the TRIPS Agreement, that importation is  equivalent to "working" a patent. 
 
Article 69 of Law No. 2000-84 on Patents includ es the following situations where patents are 
subject to compulsory licensing:  
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 65 
 
 
- "where the patented product has not been  sold in sufficient quantities to meet the 
needs of the Tunisian market"; 
 - "where industrial or commercial exploita tion of the patented invention has been 
discontinued for longer than three years in Tunisia". 
 
These two indents show that the working of a pate nt has not been interpreted in a restrictive 
manner, and is understood as referring to in dustrial or commercial exploitation. 
 
The essential requirement is that the pate nted product is commercialized, whether by 
industrial exploitation or importation, in such a way as to meet the needs of the domestic market. 
 
3. Does your legislation make the granting of a compulsory licence subject to all the 
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant 
provisions of law.  
 Law No. 2000-84 of 24 August 2000 makes the granting of compulsory licences subject to the conditions enumerated in Article  31 of the TRIPS Agreement. 
 
Article 69 of the Law states that after expiry of  the period specified (four years from filing of 
the applications, or three years from the issuing of the patent), any person interested in doing so may 
seek a compulsory licence at any time:  
- Where industrial exploitation of the patented invention has not commenced or no 
genuine preparations for such explo itation have been made in Tunisia; 
 
- where the product to which the invention refers has not been commercialized in 
sufficient quantities to meet the needs of the Tunisian market; 
 - where the industrial or commercial exploita tion of the patented invention has been 
discontinued for longer than three years in Tunisia. 
 
Article 70 of the same Law states that any app lication for a compulsory licence must be made 
to the competent Court. The applicant for a compul sory licence must provide proof that the applicant 
has approached the patent holder to seek a contractua l licence but has not been able to obtain such a 
licence on reasonable commercial te rms and conditions, and within  a reasonable period of time. 
 
 A compulsory licence on the basis of non-exploitation or insufficient exploitation may never be granted if the patent holder demonstr ates the existence of a legitimate excuse. 
 
Compulsory licences are non-exclusive. 
 
According to Article 74, the Court sets the conditions for a compulsory licence, and in 
particular the term of the licence, its scope and the am ount to be paid to the patent holder, which is to 
be commensurate with the extent of exploitation.  
4. Does your legislation provide for the princi ple of the reversal of burden of proof in a 
process patent litigation? Please cite the relevant provisions of law.  
Article 85 of the Law on Patents includes provisions on the reversal of the burden of proof in 
a dispute relating to a process patent. According to th e Article in question, "if the patent subject matter 
is a product manufacturing process, the Court is en titled to order the defendant to prove that the 
process used to obtain an identical product is differe nt from the patented process. If the defendant fails IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 66 
 
 to provide such proof, any identical product manuf actured without the consent of the patent holder 
shall be presumed to be obtained through th e patented process if the product is new". 
 
B. 
PROTECTION OF UNDISCLOSED INFORMATION  
5. Please explain in detail if your legislation ensures that undisclosed test or other data 
submitted by an applicant to the responsible State agency in the procedure for market authorisation of a pharmaceutical or an agric ultural chemical product is protected against 
disclosure and against unfair commercial use by a competitor, for example by prohibiting a 
second applicant from relying on, or from referring to the original data of the first applicant, 
when applying subsequently for market au thorisation for a similar product. Does your 
legislation provide for exceptions to this? If yes, under what conditions would such exceptions 
apply? Does your legislation set a specific term of protection for undisclosed test or other data of 
the first applicant?  
The application dossiers submitted differ according to whether the product is a first product or 
a generic one.  It is only in the case of a first pr oduct that all the clinical data specified by law are 
required.  
These data are evaluated by experts who are subject to a legal obligation of professional 
secrecy. The administration itself is also subject to this secrecy requirement, and no dossier submitted 
may be communicated or used on the submission of a second application. 
 Generic products may be exempted from the re quirement for clinical and pharmacological-
toxicological dossiers if the administration deems that a sufficient period has passed, and the patent 
has expired. If the administration deems these dossier s to be necessary, the laboratory in question is 
required personally to recompile a ll the data required, without the possibility of referring to the 
documentation for the first product.  
It should however be noted that traditionally it has been possible to use research which has 
been published in periodicals in any first or sec ond product dossier, since this information has been 
placed in the public domain at the initiative of the owner of the first product. 
 
Ad reply to question 5
: 
  Referring to the issue of unfair commercial u se of data submitted by an applicant to the 
responsible State Agency in the procedure for market authorization of a pharmaceutical or of 
an agricultural chemical product, please specify whether your legislation sets a specific term of 
protection for undisclosed test or other data of the first applicant.  
 
 Pharmaceuticals are governed by Laws Nos. 73-55 of 3 August 1973 and 85-91 of 
22 November 1985.  Implementing rules and regulations have been enacted, including: 
 
- Decree No. 90-1400 of 3 September 1990, laying down rules of good manufacturing 
practice for medicines for human use and regulating quality control, packaging, 
labelling, denominati on and advertising; 
 
- Decree No. 90-1401 of 3 September 1990 laying down procedures for medical or 
scientific testing of medicines for human use; 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 67 
 
 
- Order of the Minister of Public Health of 10 September 1996 establishing the 
procedures for authorization to market medicines for human use and renewal and 
assignment of such authorization. 
 
 The above texts, pursuant to the laws that gave  rise to them, provide for disciplinary sanctions 
and civil and criminal penalties for infringement. 
  The processing of applications relating to medi cines is governed by procedures and provisions 
that guarantee the security of information.  They are detailed as follows. 
 
Reception of applications
   
  This is handled by a pharmaceutical inspector  dealing directly with the person delegated by 
the laboratory filing the application.  The application, countersigned by  the inspector, is then returned 
to the person with an official filing date.      
 
Assessment of applications
   
  Applications are kept under the inspector's res ponsibility.  Pharmaceutical files are sent to the 
National Drug Control Laboratory, which determines wh ether the product is in conformity with what 
is stated in its file, in the light of current pharm aceutical knowledge.  Clinical files are submitted to an 
expert appointed by Ministerial order for a detailed report to an expert committee. 
 Assessment of products similar to registered products
   
 
 Data confidentiality is crucial at this stage, in  order to prevent the use of data recorded in 
another file.  
  In Tunisia, as in most countries with a reliabl e registration system, the procedure is based on 
the following: 
  
- Clinical data pertaining to a molecule that  is the subject-matter of a second application 
is not required because the molecu le has already been analysed; 
 - regulations require the product to be appr oved for marketing in its country of origin 
(Autorisation de mise sur le marché  - AMM);  where this is a country having signed 
the WTO Agreements, responsibility for ob servance of the provisions governing 
patents lies with the country of origin, if no application for a patent specific to another 
country has been filed;  where the country has not adhered to the WTO Agreements, it is for Tunisia to ensure observance of intellectual property provisions;  
 - application for marketing approval requir es submission of a pharmaceutical file, 
including analysis methods which must satisfy either of the following conditions:  
 
(a) where the product is described in an international pharmacopoeia, reference to 
the latter is sufficient to validate the methods used;  
 
(b) if such is not the case, the supplier is required to present a method that he 
himself has validated without referring to the data furnished by the first holder 
of the marketing authorization. 
  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 68 
 
  Scientific publications may be used, however, for the relevant authority regards the results 
they contain as having become public knowledge at the initiative of the patent holder or of the 
international scientific community. 
 
 The procedure applied by Tunisia has been in force for more than 20 years, making it possible 
to avoid conflicts of interest and ensuring data confidentiality.  It has enabled the relevant authority to 
acquire the status of WHO Collaborating Centre fo r drug registration and pharmaceutical regulation. 
 
 Article 103 of Law No. 2000-84 of 24 Augus t 2000, which covers pha rmaceutical products, 
makes provision for delaying implementation of the La w according to the extension period set in the 
relevant WTO Agreement. 
  Tunisia nevertheless assures the admissibility of patent applications pursuant to that same 
international Agreement. 
 
 All the aforementioned information and refe rences to regulation are public and can be 
accessed at:  www.dpm.tn
. 
 
C. ENFORCEMENT  
6. Please indicate remedies provided by you r legislation which constitute effective 
deterrents to infringements of intellectual property rights.  
Further to the reply to this question provided in the replies of Tunisia to the Checklist of 
issues on enforcement  (document IP/N/6/TUN/1) and in  particular the replies to questions 15, 16, 17, 
18, 19, 21, 22 and 24, the following should be noted: 
 
Literary and artistic intellectual property (copyright and related rights) is protected in Tunisia 
by the following: 
 - International treaties legally ratified pursu ant to Article 32 of the Constitution, which 
take precedence over legislation (the Uruguay Round agreements (TRIPS), the Berne 
Convention, etc.); 
 
- ordinary law: general civil and crimin al legislation (Code of Obligations and 
Contracts, Commercial Code, Law on Competition and Prices, Code of Criminal Procedure, Customs Code, etc.); 
 
- special ( sui generis ) legislation, specifically Law No. 94-36 of 24 February 1994 on 
Literary and Artistic Property (copyright) and the relevant impl ementing provisions, 
in particular Decree No. 96-2230 of 11 November 1996 on the administrative and financial organization of the Tunisian Copyright Protection Agency and its operating procedures. 
 
It should be noted that a draft Law is currently before the Chamber of Deputies, following 
adoption of the text by the Council of Ministers a nd the Constitutional Council.  The main objective of 
this legislation is on the one hand to bring the provisions of the above-mentioned Law No. 94-36, 
relating to copyright, into line with the provisions of the TRIPS Agreement and the WIPO Treaty of 
December 1996, and on the other hand to incorporate in  this special legislation provisions on related 
rights in accordance with the TRIPS Agreement, the Rome Convention and the WIPO Treaty of 
December 1996.  IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 69 
 
 
As regards the enforcement obligations under S ection 3 of the TRIPS Agreement, Tunisian 
legislation lays down procedures for the enforcem ent of copyright and related rights which allow 
effective action to be taken against any act in infringement of such rights.  
Article 42
 
  For example, in accordance with Article 42 of  the TRIPS Agreement on fair and equitable 
procedures:  
(1) The parties are authorized to arrange to be represented by inde pendent legal counsel.  
Indeed, "representation by an attorney-at-law is ma ndatory in proceedings before a Court of First 
Instance. 
 The chambers of the attorney-at-law shall be re garded as the elected domicile of its client for 
the level of jurisdiction for which the attorney is  retained" (Article 68 of the Code of Civil and 
Commercial Procedure). 
 (2) Defendants must receive timely written noti ce setting out the basis for the allegations.  
Article 70 of the Code of Civil and Commercial Pr ocedure states that "the writ of summons must 
specify the surnames, given names, occupations and addresses of the parties and the capacities in 
which they are acting, along with an account of th e facts in the matter …  It must also include a 
statement calling on the party on whom the writ is served to enter its pleadings in reply".  
(3) A procedure is specified in Tunisian legi slation for the identification and protection of 
confidential information, as follows: 
 
- Article 253 of the Criminal Code states that "Any person who discloses the contents 
of a letter, telegram or a ny document belonging to another party without authorisation 
is liable to a prison sentence of three months". 
 
- Article 254 of the Criminal Code states th at "Any doctors, surgeon or other medical 
personnel, as well as any pharmacist, midwif e or any other person in whom secrets 
are vested by virtue of their status or  profession who reveals such secrets, except 
where required or permitted by law to repor t the matter, shall be liable to a prison 
sentence of six months and a fine of 500 francs ...". 
 
The general regulations govern ing the conduct of public-sector personnel place civil servants 
under obligations of professional secrecy and disc retion; these general regulations include the 
following:  
- The General Regulations for State employees of local public authorities and 
administrative public bodies; 
 
- the General Regulations for the employees of Boards, industrial and commercial 
public bodies, and companies whose capital is he ld directly or indirectly by the State 
or by public authorities; 
 
- the General Regulations for magistrates; 
 
- the General Regulations for customs staff; 
 
- the General Regulations for the pers onnel of the internal security forces. 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 70 
 
 
Furthermore, Article 168 of the Labour Code states that "members of company consultative 
committees and staff representatives are bound by the obligation of professional secrecy with respect 
to all information of a confiden tial nature coming into their posses sion while serving in that capacity, 
and to all matters relating to manufacturing processes.  In the event of a breach of this obligation they 
shall be liable to the penalties set down in Articles 138 and 254 of the Criminal Code". 
 
Article 138 of the Criminal Code states that "i n addition to a fine, any manager, clerk or 
worker of a factory who discloses or communicates a manufacturing secret shall be liable to a prison sentence of two years; attempts to do so are also punishable". 
 
Article 43
 
 
Tunisian legislation, in accordance with Ar ticle 43 of the TRIPS Agreement on evidence, 
gives judicial authorities the power to order a party in proceedings, on a request to this effect from the 
opposing party, to produce the evidence lying in its control. 
 Articles 213 to 223 of the Code of Civil and Commercial Procedure allow the presiding judge 
of the Court to issue rulings on request from either of the parties in the case, to ensure the protection 
of rights and interests which must not be left unpr otected. In cases of extreme urgency, judges may 
rule in their private homes on questions submitted to them. 
 
Enforcement of rulings issued in this manner is  not subject to the appending of the seal of the 
Court or " ad hoc " registration.  These formalities are completed later. 
 Rulings issued on request are exempted from th e registration procedure.  Such rulings are 
enforced without delay by process-serving notaries. 
 
A request for the withdrawal of a ruling does not suspend enforcement.  Article 101 of the 
same Code states that "if it is necessary to obtain an  expert’s report and the parties fail to agree on the 
selection of the expert, the expert shall be appointed by the judge". 
 
Article 44
 
 
 As regards Article 44 of the TRIPS Agreement on injunctions, under Tunisian legislation the 
judicial authorities have authority to issue various kinds of rulings, i.e. interim injunctions, payment 
injunctions and final judgments or other judgments. 
 
According to Article 86 of the Code of Civil and Commercial Procedure, "if it sees this as 
necessary, the Court may ask the judge acting as ra pporteur to carry out any investigative actions, 
such as an inquiry, visit to the scen e, expert’s report, taking of pl eas of forgery, or any other action 
that will help to establish the truth".  
 
The Court, during the hearing and in the presen ce of the parties, may set the date for the 
investigative action so ordered, specifying the date and time for the appearance of the parties in the 
chambers of the judge as rapporteur or at the location of the dispute or any other location. 
 Article 225 of that same Code states that "in an y event, the Court may require ex officio the 
participation of a third party in the proceedings wh ere it sees the presence of that party as essential for 
a correct appreciation of the matter at issue".  If it is necessary to arrange an expert’s report and the parties fail to agree on the selection of the e xpert, the expert is appointed by the judge. 
 Furthermore, according to Article 86 of the Code  of Civil and Commercial Procedure, "if it 
sees this as necessary, the Court may ask the judge acting as rapporteur to carry out any investigative IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 71 
 
 actions, such as an inquiry, visit to the scene, expert ’s report, taking of pleas of forgery, or any other 
action that will help to establish the truth".     Emergency interim proceedings
: 
 
 Article 201 of the Code of Civil and Commercia l Procedure (CCCP) states as follows:  "In all 
situations of urgency , emergency interim rulings shall be issued, without prejudice to the main 
action".  
 "Emergency interim rulings may be made by the presiding judge of the Court of First Instance 
or a person with delegated authority from that judge , or a canton magistrate where that magistrate has 
jurisdiction under the law" (Art. 202 of the Code of Civil and Commercial Procedure). 
  "Provisional injunctions are enforceable 24 hour s after service, unless the judge has granted a 
period of grace." 
  Enforcement is carried out without a security unless the judge has ordered that a security be 
provided (Art. 207 of the Code of  Civil and Commercial Procedure). 
 Payment injunctions
 
 
 Article 59 of the Code of Civil and Criminal Procedure states that a payment injunction may 
be issued for any debt payment demand where the de bt – irrespective of its nature – is for a fixed 
amount and is based on a contract.  
Judgment
 
 
 A judgment is not final if the decision is subj ect to appeal.  However, provisional enforcement 
of a judgment may always be ordered, with or w ithout security, according to the circumstances of the 
case (Articles 126 and 286 of the Code of Civil and Commercial Procedure). 
 
  
Final judgment  
  A final judgment ends the action by deciding the question at issue in the proceedings.  
Article 45
 
  With respect to the damages referred to in Ar ticle 45 of the TRIPS Agreement, the provisions 
of Articles 82 and 83 of the Code of Obligations  and Contracts (COC) require a party which has 
knowingly or deliberately caused material or mora l damage to another party to make good that 
damage, where it is established that this was the direct cause of the damage in question. 
 
 Along the same lines, Article 51 of Law No. 94-36 of 24 February 1994 on Literary and Artistic Property states that "any person who infri nges copyright as set out in this Law shall be 
required to pay the owner of such right damages fo r material and moral dama ge caused to the owner, 
for the amount determined by the competent Court". 
 
 The draft Law amending and adding to the sai d Law No. 94-36 extends these rights to include 
related rights.  IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 72 
 
 Article 46
 
  With respect to the other remedies referred to  in Article 46 of the TRIPS Agreement, the 
following points should be noted: 
 
Regarding precautionary measures
 
  (1) The Code of Criminal Procedure gives the investigating magistrate
, and in some cases 
criminal investigation police officers , the power to effect the following: 
 
• Searches  in all premises where objects may be located whose disclosure is deemed 
necessary in order to arrive at the truth; 
 
• confiscation  of papers or chattels likely to contribute to establishing the truth of the 
matter ...; 
 
• expert’s reports  where required by the circumstances,  so that technical inspections can 
be carried out ... with experts to be given specific time limits for the submission of 
their reports ...; 
 
• the Code of Civil and Commercial Procedure allows any person able to demonstrate a 
legitimate interest to ask the Court to or der the implementation of any measures to 
ensure the protection of rights and interests which must not be left unprotected ... . 
 
 (2) Article 55 of Law No. 94-36 of 24 Febr uary 1994 on Literary and Artistic Property 
allows the competent Court to order ex officio or on request the confiscation or destruction of 
fraudulent copies and the temporary or definitive  closure of the establishment in which the 
infringement has been ascertained.  
 The owner of the establishment where the infri ngement has been committed is regarded as 
jointly and severally liable with the principal offender committing the infringement for making good 
the damage.   (3) Regarding the enforcement of a judgment: 
 
  The process-serving notary may:   - Enter the premises where the enforcement of  the judgment is to be carried out, place a 
guard at the door to prevent any misappropr iation of property, require the immediate 
attendance of the officer in charge of th e local police station or national guard, in 
whose presence the opening of the doors ... and furniture ... will take place ...; 
  - effect a distraint procedure on property of the party against which the ruling is given.   The Court may: 
 
 - order the publication of the judgment, in part or in full, at the expense of the party 
against which the ruling is given. 
 IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 73 
 
 Article 47
 
  As regards the right of information referred to  in Article 47 of the TRIPS Agreement, in a 
criminal case the judicial authority and its auxilia ry entities are empowered to seek any information or 
clarification from the person charged regarding his or  her accomplices, the beneficiaries of the offence 
with which the defendant is charged, and the channe ls of distribution of the objects involved in the 
criminal offence.  The person charged does of course have the right to remain silent and may decline 
to answer any question, but the judge will take that  silence into account when considering the penalty 
to be imposed. 
 
 The information obtained from the criminal investigation can be used as supporting evidence 
for a civil action, both in the case of civil ac tions brought separately and for actions conducted 
concomitantly with the criminal proceedings.  
 
Article 48  
  Regarding the indemnification of the defenda nt referred to in Article 48 of the TRIPS 
Agreement, ordinary law (the Code of Obligations  and Contracts) generally  allows reparation for 
moral and material damage suffered, and a suit can be brought to seek reparation for the loss incurred 
following a wrongful and unjustified action. 
 
 Administration officials guilty of abuses and fa ults committed in the course of their duties are 
subject to administrative sanctions under the re gulations governing their conduct, and may be 
prosecuted in civil and even criminal proceedings , according to the nature and level of the fault 
committed. 
 
 Article 50-4 of the draft Law amending and a dding to Law 94-36 of 24 February 1994 states 
that "subject to completion of all customs formalitie s, the suspension of the release of the products 
shall be revoked automatically if the author, holder of related rights or his/her representative has failed 
to provide the customs authorities, within ten days fr om notification of the suspension of the release of 
the products, with proof of the following: 
 
 Lodgement of a security sufficient to cover its liability to the persons concerned in the event 
of it being subsequently established that the products in question do not infringe the copyright or 
related rights .  The amount of the said security shall be set by the competent Court". 
 
 Similarly, Article 54 (new) of the new draft Law states as follows in its last paragraph:  "The 
records of the identification of the infringement and the confiscation measure shall be sent within 
seven days to the Public Prosecutor, who shall fo rward the documents to the competent Court for a 
ruling on the approval or revocation of the confiscati on within a time limit of no more than one month 
from the date on which the confiscation measure w as carried out. If the Court does not rule on the 
confiscation within the time limit specified, the c onfiscation measure shall be revoked automatically". 
 
Article 49  
  As regards the administrative procedures referre d to in Article 49 of the TRIPS Agreement, 
Tunisian legislation does not provide for any admini strative procedures on the merits of a case.  Only 
the judicial authorities are author ized to deal with the matter. 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 74 
 
 Article 50
 
  As regards the provisional measures referred to in Article 50 of the TRIPS Agreement 
(generic legislation), adequate provisional measures are provided for in Tunisian ordinary law through 
the mechanisms of provisional injunctions and rulings on request as described above. 
  The draft Law amending and adding to law No . 94-36 of 24 February 1994 on Literary and 
Artistic Property states in Article 54-1 that "the right holder or his/her representative may, as a 
preventive measure, on the basis of a ruling on request  issued by the presiding judge of the competent 
Court, arrange for a process-serving notary, assisted by  an expert, to carry out a detailed description, 
with or without physical confiscation, of the a lleged counterfeit products c onstituting an infringement 
of copyright or related rights".  
Such measures may be ordered "in all situations  of urgency, on a provisional basis, without 
prejudice to the principal action" (Article 201 of  the Code of Civil and Commercial Procedure). 
 Articles 51-60
 
  As regards the special requirements related to border measures referred to in Articles 51 to 60 
of the TRIPS Agreement, in addition to the Customs Code which protects the borders from any 
infringement of intellectual property and Article 50 of Law No. 94-36 of 24 February 1994 on Literary 
and Artistic Property, which prohi bits the importation of works breaching copyright, Articles 50-1 to 
50-5 of the draft Law amending and adding to Law No. 94-36 on Literary and Artistic Property 
contain provisions in accordance with th e requirements of the TRIPS Agreement. 
 
1. Thus, Article 50-1 of the draft Law states that "customs authorities may suspend 
customs clearance procedures for products in resp ect of which there is manifest evidence of 
infringements against copyright and related rights.  The customs authorities may ask the author and holders of related rights or their representative to provide any information which may be of assistance 
in the exercise of their authority".  
2. As regards procedures by which the cust oms authorities suspend the release into free 
circulation of the goods, paragraph 2 of Article 50-1 states that "the customs authorities shall promptly 
notify the author or holders of related rights or th eir representative of the suspension; they are required 
to lodge the application referred to in Article 50-2 within a time limit of seven days from the date of 
the notification. 
 
Article 50-3 of the same draft Law states that "customs authorities shall immediately notify 
the author or holders of related rights or their repr esentative, and the owner, importer or consignee, of 
the suspension of release, giving them the opportunity  to examine the products whose release has been 
suspended in accordance with the provisions of the Cu stoms Code. On the basis of a ruling on request, 
to enable the author and holders of related right s or their representative to bring legal actions, the 
customs authorities are required to inform them of  the names and addresses of the owner, importer or 
consignee, if known".  
Finally, Article 50-5 of the draft Law amendi ng and adding to Law No. 94-36 of 24 February 
1994 states that "the owner, importer or consignee shall be entitled to ask the Court to revoke the 
suspension of the release of the products at issue, in  return for the lodgement of a security sufficient to 
protect the interests of the author or holders of related rights, provided that:  
- The customs authorities have been inform ed within the time limit specified in 
Article 50-4 of this Law of the referral of the matter to the competent Court for a 
ruling on the merits of the case; IP/Q/TUN/1, IP/Q2/TUN/1,  
IP/Q3/TUN/1, IP/Q4/TUN/1 
 Page 75 
 
 
 - on the expiry of that time limit, the competent Court has not granted any 
precautionary measures;  and 
 
- all customs formalities have been completed. 
 3. As regards the actual duration of the customs procedures, Article 50-4 of the draft 
Law amending and adding to Law No. 94-36 of 24 Fe bruary 1994 on Literary and Artistic Property 
states as follows: 
 
"Subject to completion of all customs formalities,  the measure of suspension of the release of 
the products shall be revoked automatically if the author, holders of related rights or their 
representative has failed to provide the customs au thorities, within ten days from notification 
of the suspension of the release of the products, with proof of the following: 
 
- Adequate precautionary measures ordered by the competent Court; or  - the lodgement of a civil or criminal action; or  - lodgement of a security sufficient to cover its liability to the persons concerned in the 
event of it being subsequently established that  the products in question do not infringe 
the copyright or related rights.  The amount  of the said security shall be set by the 
competent Court. 
 
Where appropriate, the time limit set down in the first indent of this Article may be extended 
by a maximum of ten days by the competent Court. 
 The measure of suspension of release of the pr oducts pursuant to Artic le 50-1 is also revoked 
automatically if the author, holders of related rights or their representative fails to lodge the 
application referred to in this Article within a time limit of seven days from the date of notification by 
the customs authorities." 
 
The customs authorities may act on their own in itiative to suspend the customs clearance 
procedures for products in respect of which there is  manifest evidence of infringements of copyright 
or related rights (Article 50-1 of  the above-mentioned draft Law). 
 
Article 61
 
  As regards the criminal procedures referred to in Article 61 of the TRIPS Agreement, further 
to reparation for damage in civil proceedings, Article 52 of Law No. 94-36 of 24 February 1994 
provides for a fine of 50 to 5 000 dinars, doubled in  the event of a repeat o ffence, with the possibility 
of imprisonment for between one and six months. 
 
Article 52 (new) of the draft Law amendi ng and adding to Law No. 94-36 of 
24 February 1994 on Literary and Artistic Prope rty increases the fine to between 1,000 and 
50,000 dinars.  
The fine is doubled in the event of a repeat offence, and the possibility of imprisonment has 
been increased to between one and 12 months. 
 These penalties may be accompanied by confiscation of the infringing goods, their destruction 
and the temporary or definitive closure of the establishment where the infringement was committed. 
 IP/Q/TUN/1, IP/Q2/TUN/1, 
IP/Q3/TUN/1, IP/Q4/TUN/1 Page 76 
 
 
As regards the public authorities charged w ith identifying infringements and initiating 
criminal proceedings, the first paragraph of Article 54 (new) of the draft Law amending and adding to 
Law No. 94-36 of 24 February 1994 on Literary and Ar tistic Property states that "the identification of 
breaches of this Law and the drawing up of record s of evidence [is] entrusted to the criminal 
investigation police authorities and officials of th e Ministry of Culture duly sworn and empowered for 
this purpose ...".  
Article 54 (new) of the draft Law amending and adding to Law No. 94-36 extends these 
prerogatives to customs officials, officials responsib le for monitoring economic  activity and municipal 
regulatory officials. 
 
Public authorities may act on th eir own initiative to institute criminal proceedings.  Thus, 
paragraphs 2 and 3 of Article 54 (new) of the draft Law amendi ng and adding to Law No. 94-36 of 
24 February 1994 on Literary and Artistic Property stat e that "the above-mentioned officials may seize 
the necessary documents and take samples of th e counterfeit products for the purposes of the 
investigation and to prove the infringement, agains t receipt. They may also seize, as a preventive 
measure, any products suspected to be counterfeit and not in accordance with current regulations". 
 
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