An IP Roadmap25-07-2018
TLG’s Althea Rozario highlights the current status and significant features of Intellectual Property Rights protection in the jurisdictions of Jordan and Iraq.
The concept of protecting Intellectual Property Rights dates to ancient Greece, which then evolved with time to meet modern day requirements. The basis of these rights is outlined in Article 27 of the Universal Declaration of Human Rights. It imparts the right to a person to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions. The ardent call for the protection of these rights was first felt when foreign exhibitors refused to take part in the International Exhibition of Inventions in Vienna in 1873 fearing their work to be stolen. Presently, the WIPO, a specialized agency of the UN, along with the many treaties promulgated by the WTO plays a vital role in protecting Intellectual Property Rights worldwide.
This article would specifically explore Intellectual Property Rights Protection in Jordan and Iraq.
The country has a well-developed network of laws that helps in the protection of Intellectual Property rights – patents, trademarks and copyrights. Even before its accession to the WTO, Jordan had passed many laws and regulations in this field. The basic requirement to afford protection in the Country is that the trademark/copyright or the patent must be registered at the Ministry of Industry – Trade and Supply, National Library, a subsidiary body of the Ministry of Culture, and the Registrar of Patents respectively.
Administrative, civil and criminal legal actions can be initiated in case of infringement of such rights. The customs is the first line of defense when it comes to counterfeits, which is trademark infringement. The Intellectual Rights Department of the Jordanian Customs detains and inspects shipments that they suspect to be counterfeit items. The customs has ex-officio authority to suspend shipments on the basis of suspicion. The right holder would then be notified of the suspension, who has to then respond within eight days from the date of notification whereby the right holder has to file a petition in the Court of competent jurisdiction if the goods are confirmed to be counterfeit or released if the goods are genuine. The preliminary requisite for such detention is that the Customs Recordation has to be carried out to enable the customs to detain shipments. Article 41 of the Customs Law prescribes the procedures for the recordation. Yet, a drawback is that this protection does not extend to the Free Zones in the country.
In case of infringement, the right holder can file a petition before the civil or criminal court of competent jurisdiction seeking remedies for infringement, which in most cases would be cessation of the infringement, order to preserve evidence related to the infringement or precautionary seizure of the goods in question. The court has the discretion to appoint an expert to investigate the matter. After the court issues the order the police conduct raids on the infringing trader be it retailer/warehouse or distributors, leading to the seizure of the goods.
The Jordanian Public Security Directorate also has specialised IPR Units to enforce IP rights of the holder. The Jordanian Standardization and Meterology Organisation (JSMO) has an Inspection and Surveillance Department. Along with the other divisions includes a Border Control Division, to take care of matters pertaining to imported products and the market surveillance division. The JSMO aims at protecting the consumers as well as the right holder and have the right to carry out random inspection on traders based in the mainland. In case of copyright infringements, the Jordanian National Library acts as the Public Prosecutor and can seize pirated goods on its own initiative and refer the matter to the court of competent jurisdiction.
Jordan has improvised its Intellectual Rights protection strategies to an extent that it is one among the countries in the Middle East where IP violation is the least. The country has set a benchmark in the Middle East for the protection of Intellectual Property Rights.
Intellectual Property enforcement in Iraq is not as developed and structured as seen in Jordan, even though it joined the WIPO in 1976. Nevertheless, it cannot be said that a right holder can’t afford protection of its Intellectual Property Rights in the Country. The basic requirement to afford such protection is registration. A trademark has to be registered with the Trademark Registration Office at the Ministry of Industry and Minerals in Baghdad. Although in 2011, the Ministry of Trade and Industry in Kurdistan began its own system to cover the province. This has in turn resulted in a conflict, confusing the right holder, even though it is considered that the registration in Baghdad would cover the entire country. Regarding copyrights, to afford protection it has to be registered in Ministry of Culture and Central Organization for Standardization & Quality Control (COSQC). This entity is responsible for industrial property. The protection of copyright and patents protection has not evolved as much as trademarks.
Unlike in Jordan, protection afforded through customs recordation is not available in Iraq. A shipment can be stopped only through a court action. For this, the right holder has to have the information of the shipment beforehand and consequently file the petition before the Court. It would be based on the order issued by the court that the shipment would be suspended and inspected.
Furthermore, the right holder could also file an urgent petition at the Court for preliminary measures before or during a civil or criminal action. Through this, they could request for inspection and seizure of the goods in question. In case the preliminary measure has been issued before filing the lawsuit, then the right holder is required to file the case within a specified period of time, else the measure would be revoked, and the owner would be liable for damages.
A criminal action can also be initiated in Iraq, whereby a complaint must filed at the Court of Inquiry which passes its order to conduct the raid action by the Police to be followed by an investigation by them. Once the report has been made by the Police and sufficient evidence is collected, then the case would be transferred to the Court of Misdemeanors for adjudication. The Right holder is also entitled to file a civil case in the Court to claim compensation for the damage suffered by the brand owner due to the infringement action. Nonetheless, the burden of proving the loss would fall on the plaintiff.
Although Iraq affords protection to rights holders who have registered their trademarks/ copyrights or patents, they still have a long way to trod when it comes to its enforcement, which is not only complicated but also cumbersome.
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Althea Edwina Rozario, senior legal consultant and partner, Intellectual Property, The Legal Group (TLG)