RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/105
2 December 1998
(98-4832)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  French/English1
REVIEW OF LEGISLATION
Replies of Romania to the Questions Posed by the European Communities
and their Member States and by the United States2
The following communication, dated 14 July 1998, has been received from the Permanent
Mission of Romania.
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I. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND 
THEIR MEMBER STATES
A. TRADEMARKS
1. Article 3(a) of the law on Trademarks and Geographical Indications defines a
trademark as a sign [ … ] serving to distinguis h the goods or services of one person [ … ] of
other persons.  However, Article 15.1 of the TRIPS Agreement refers to the goods or services of
an undertaking.  Please explain this distinction and its consequences.
The definition of a trademark, under Article 3(a) of the Law, utilizes the terms "natural or
legal persons" in a broader sense, which also covers the concept of "undertaking".
The terms "natural or legal persons" are used in Article 3(a) of the Law to ensure complete
concordance with the definition given in the law for the concept of owner.
Consequently, in accordance with Article 3(h) of the Law the "owner" is the natural or legal
person in whose name the trademark is registered in the national trademark register.
Taking into account the fact that the TRIPS Agreement does not contain provisions restricting
the concept of owner to "undertaking", the intention behind the Romanian legislation was to define
the concept of trademark as a sign serving to distinguish the goods or services belonging to one owner
("natural person" or "legal person") from those belonging to other owners (respectively, to "other
persons").
The concept of owner in Romanian law retains the meaning given to it in Council Regulation
(EC) No. 40/94 on community trademarks, Commission Regulation (EC) No. 2868/95,  the
Trademark Law Treaty (TLT), the common implementing regulation to the Madrid Agreement
Concerning the International Registration of Marks and the Protocol thereto.
                                                     
1 The questions were received in English and the replies in French.
2 IP/C/W/101.IP/C/W/105
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Thus, the terms "natural persons" or "legal persons" used in Article 3(a) of the Law have a
broader meaning than the term "undertaking" used in Article 15.1 of the TRIPS Agreement.
2. Articles 2.1 of the TRIPS Agreement and 11 of the Paris Convention provide for
temporary protection of trademarks during offi cial or officially recognized international
exhibitions.  Article 12 of the Law on Copyright and Neighbouring Rights appears to be limited
to settling the issue of priority.  Please clarify this state of affairs.
Under Articles 1 and 2 of the Law, trademark rights are recognized on Romanian territory
under the conditions of the Law and of the relevant international conventions to which Romania is a
party.
Accordingly, the temporary protection provided for under Article 11 of the Paris Convention
is recognized on Romanian territory.  Article 12 of the Law, taking up certain provisions of the
Convention on "right of priority", does not create any limitation or derogation with respect to
Article 11 of the Convention and, respectively, Article 2.1 of the TRIPS Agreement.
B. GEOGRAPHICAL INDICATIONS
3. Please explain how, in the event of homonymy, geographical indications of wines are
protected by Romanian legislation (Article 23.3 of the TRIPS Agreement).
Under Article 73 of the Law, registration of a geographical indication in the name of a
producers' association does not prevent registration of the same indication by any other association
engaged in a production activity within the geographical area for the products mentioned in the
application.
This provision, which refers to the obtention of protection by several producers' associations
of the same geographical indication, applies " a fortiori " in the case of protection of homonymous
geographical indications, in accordance with Article 23.3 of the TRIPS Agreement.
For the purposes of implementation of the provisions of Article 73 of the Law, the draft
implementing regulations to the Law (currently under approval) provide that, in the case of
application for protection of certain homonymous geographical indications for wines, the
homonymous geographical indication will be accompanied by an indication of the name of theassociation of producers of the wines concerned, as well as by an indication of certification by the
competent authority of the conformity of the products with the standards laid down by the required
specifications for the homonymous geographical indication.
C. 
INDUSTRIAL DESIGNS
4. Article 25 of the TRIPS Agreement provides that WTO Members shall provide for the
protection of independently created industrial designs that are new and original.  Articles 8
and 9 of the Industrial Designs Law do not appear to mention "independently created".  Please
explain how the Romanian legislation implements this TRIPS provision.
The provisions of Articles 8 and 9 of the Law are compatible with the provisions of Article 25
of the TRIPS Agreement.  Nevertheless, with a view to a more specific transposition of the provisions
of Article 25 of the TRIPS Agreement into do mestic law, including the words "independently
created", amendments to the Law are currently being drawn up.IP/C/W/105
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5. Articles 2.1 of the TRIPS Agreement and 11 of the Paris Convention provide for
temporary protection of trademarks during offi cial or officially recognized international
exhibitions.  Article 18 of the Industrial Designs Law seems to be limited to settling the issue of
priority.  Please clarify this state of affairs.
Under Articles 1 and 6 of the Law, rights in industrial designs are recognized and protected
on Romanian territory under the conditions of the law and of the international conventions to which
Romania is a party.
Accordingly, the temporary protection provided for in Article 11 of the Paris Convention is
recognized on Romanian territory.
Article 18 of the Law takes up certain provisions of the Convention on "right of priority" but
does not create any limitation or derogation to Article 11 of the Convention and, respectively,
Article 2.1 of the TRIPS Agreement.
6. Please explain whether and how textiles designs are protected in Romania.
The provisions of the Industrial Designs Law also apply to textile designs.
Consequently, textile designs are protected in Romania in accordance with the conditions and
the procedure laid down for all other types of industrial designs, without any special provision for
textiles.
7. Article 31 of the Industrial Designs Law provides that the duration of protection of a
design shall be five years, which may be renewed for two five-year periods.  Article 26 of the
TRIPS Agreement provides that the duration of protection available shall amount to at least
ten years.  Please explain this state of affairs.
The provisions of Article 31 of the Law are compatible with the provisions of Article 26 of
the TRIPS Agreement.
Article 26 of the TRIPS Agreement does not provide for a minimum ten-year "initial" period
of protection, but that "the duration of protection available shall amount to at least ten years".
With regard to Article 31 of the Law, the duration of the protection available in Romania is
five years with the possibility of renewal for two successive five-year periods.  Consequently, the
maximum period of protection in Romania may reach 15 years, exceeding the term of protection
provided for in Article 26 of the TRIPS Agreement.
II. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
1. Please explain whether and how Romanian law provides protection for works,
phonograms and performances from other WTO Members, and whether and how it does so on
the basis of national treatment, as required by TRIPS Article 3 (generally, with respect to all
copyrights and neighbouring rights) and Article 9.1 (incorporating Berne Article 5(1)).  Inparticular, please explain how national treatment is afforded with respect to the distribution of
blank tape levies under Article 34 of the Romanian Law on Copyright and Neighbouring
Rights.
The provisions of the Romanian Law on Copyright and Neighbouring Rights apply, as
provided for in Article 146, as the case may be, to works, performances, phonograms and radio andtelevision programmes.  In the case of foreign nationals who are owners of copyrights or
neighbouring rights, Article 147 provides that they enjoy the protection provided for in theIP/C/W/105
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international conventions, treaties and agreements to which Romania is a party;  otherwise, they enjoy
equal treatment with Romanian citizens provided th e latter in turn enjoy national treatment in the
States concerned.  Accordingly, in the application of Articles 3 and 9.1 of the TRIPS Agreement,
confirmed by Article 5.1 of the Berne Convention, Romania grants national treatment to the works of
other WTO Members in accordance with Article 5,  paragraphs 1 and 3, of the Berne Convention,
Paris Act.  With regard to performances and phonograms, national treatment is granted in accordance
with Articles 4 and 5, confirmed by Article 2, paragraph 2 of the Rome Convention, as from the date
of entry into force of the Conventi on for Romania following its accession.
Accordingly, for foreign owners  of a right to compensatory payment for private copying,
under the conditions laid down in Article 34(2) of  Law No. 8/1996, only authors may claim a part of
the sums levied, through their societies, which must conclude bilateral or unilateral agreements withsimilar societies for representation on Romanian territory in order to enjoy the right in question.
2. Does Romania apply the "rule of the shorter term" to phonograms and performances
from other WTO Members?  If so, please explain how you justify such action under TRIPS
Article 4.
No, Romania does not apply the "rule of the shorter term of protection" to phonograms and
performances from other WTO Members.
3. Please explain whether and how Romania protects against both the direct and indirect
reproduction of phonograms as required by TRIPS Article 14.2, including  by digital
transmission in the context of subs cription or interactive services.
Article 105, paragraph (1), of the Romanian Copyright Law gives the producer of a
phonogram, inter alia , the exclusive right to authorize the reproduction of his own sound recording,
and does not distinguish between direct and indirect reproduction.  This means, in accordance with the
Latin saw " ubi lex non distinguit nec nos distinguere debemus ", that the producer's exclusive right
covers reproductions of all kinds, including indirect reproduction.
Digital transmission is also protected by the exclusive right granted to phonogram producers
in Article 105, paragraph 1(c), concerning "broadcasting or transmission by radio or television of their
own phonograms, retransmission by wireless means, by wire, by cable, by satellite or by any othersimilar process, as well as by any other means of public communication.
4. Please explain whether and how Romania provides full retroactive protection to works,
phonograms and performances from other WTO Members, as required by TRIPS Articles 9.1,
14.6, and 70.2, each of which incorporate by reference or rely upon Berne Article 18.  Pleasegive the date back to which such protection ex tends with respect to each category of subject
matter.
The Romanian Law on Copyright and Neighbouring Rights provides in Article 149,
paragraph 2, that "the protection of this Law also extends to works created prior to its entry into force,including software, phonograms, cinematographic and audiovisual works".
Paragraph 2 of the same Article stipulates that "the duration of rights to exploit works created
by authors deceased prior to the entry into force of this Law, and the terms of protection for which
have expired, is extended in accordance with the term of protection provided for in this Law.  Theextension shall produce its effects as from the entry into force of this Law".
There is no explicit stipulation concerning retroactive protection of performances.IP/C/W/105
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The retroactive date calculated in accordance with the provisions of the Law to which the
protection of various works extends retroactively is:
- 1 January 1927 for individuals or collective works of which the author or last
surviving co-author or each of the co-authors, as the case may be, died after that date;
- 1 January 1927 for collective works disclosed after that date;- 1 January 1947 for computer programs of which the author died after that date;- 1 January 1947 for cinematographic works communicated to the public or created
after that date;
- 1 January 1972 for works of applied art created after that date;- 1 January 1927 for photographic works of which the author died after that date;
- 1 January 1947 for phonograms of which the first fixation or publication took place
after that date.
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