RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/262/Add.1
30 May 2001
(01-2708)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Croatia to the questions posed by Canada and Switzerland
Addendum
By means of communications from the Permanent Delegation of Croatia dated 25 May 2001,
the Secretariat has received the following responses to the questions posed by Canada and
Switzerland, as circulated in documents IP/C/W/261 and 263, respectively.
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CANADA
1. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61 of the TRIPS Agreement and
throughout?
In the case of wilful trademark counterfeiting, right holders have recourse in the penal
protection regulated by the provision of Article 285 of the Penal Law, published in "Narodne novine"- Official Gazette of the Republic of Cr oatia (hereinafter "NN") No. 110/97, 27/98.
Article 28.5 of the Penal Law provides for:
"(1) Whoever, contrary to the provisions on industrial property protection, infringes a
trademark, an industrial design, a geographical indicator or any other industrial property right,
except patents (Article 232), shall be punished by a fine or imprisonment up to three years.
(2) The punishment referred to in paragraph 1 shall be applied to any person who
manufactures, imports, transfers across a border line, offers, puts into circulation, stores or
uses without authorization the product which is the subject matter of protection referred in
paragraph 1 of this Article.
(3) Whoever uses without authorization a company name of another or includes in it features
that specially characterize the subject matter of protection of the rights referred to in paragraph
1 of this Article shall be punished by a fine or imprisonment up to three years.
(4) If the commitment of the criminal act referred  to in paragraphs 1 and 2 of this Article has
resulted in a considerable financial gain or considerable damage, and if the perpetrator has
acted with the aim of acquiring such financial gain or causing such damage, he shall be
punished by imprisonment ranging fr om six months up to five years.
(5) Objects intended for or used in the commitmen t of the criminal act or resulting from the
criminal act referred to in paragraphs 1 and 2 of this Article shall be seized and destroyed.IP/C/W/262/Add.1
Page 2
The penal protection of authors including the protection against copyright piracy is regulated
by Article 230 of the Penal Law (NN N o. 110/97, 27/98) which provides for:
"(1) Whoever, without the permission of the author or another copyright owner, when
such permission is required by the Law, or despite their prohibition, fixes, reproduces, putsinto circulation, rents, imports, transfers across a border-line, presents, performs, broadcasts,
transmits, makes available to the public, translates, arranges, adapts, or otherwise uses a
copyright work, shall be punished by a fine or imprisonment for up to three years.
(2) The punishment referred to in paragraph 1 of this Article shall be applied to any
person who, without the permission of the performer or the person who is authorized to give
such permission, when such permission is required by the Law, or despite their prohibition,records, reproduces, multiplies, puts into circulation, rents, imports, transfers across a border-
line, presents, performs, broadcasts, transmits, makes available to the public, or otherwise
uses a performance.
(3) The punishment referred to in paragraph 1 of this Article, shall be applied to any
person who, with the intent to enable unauthorized use of a copyright work or of a
performance, produces, imports, transfers across a border-line, puts into circulation, rents,
enables another to use or exploit any kind of equipment or means, the main or predominant
purpose of which is to enable unauthorized elimination or prevention of any of technical
means or computer programs the purpose of wh ich is protection of copyright or performer's
right against unauthorized use.
(4) A person with whom the objects intende d for or used in the commitment of the
criminal offence referred to in paragraphs 1, 2, and 3, of this Article, or objects that have
resulted front such commitment are found, and who had known or could and should have
known it, shall be punished )y a fine for up to one hundred daily incomes or by imprisonment
for up to six months.
(5) If, by the commitment of a criminal offence referred to in paragraphs 1, 2, and 3, of
this Article, considerable material gain was obtained and the perpetrator's intention was to
obtain such material gain or to cause such damage, he shall be punished by imprisonment
from six months up to five years.
(6) Objects intended or used for the commitmen t of the criminal offence referred to in
paragraphs 1, 2, and 3, of this Article, shall be seized and destroyed."
The Law on Penal Procedure (NN No. 110/97, 27 /98, 58/99, 112/99) contains provisions on
conducting penal procedure in relation to criminal act regulated by the Penal Law.
2. What protection does your Copyright le gislation afford to "foreign works"?
The Republic of Croatia is a party to the Berne Convention for the Protection of Literary and
Artistic Works (1971), Universal Copyright Conven tion (Geneva Text 1952, Paris Text 1971), as well
as the WIPO Copyright Treaty.
Therefore, "foreign works" enjoy in the Republic of Croatia copyright protection, which is in
compliance with the provisions of indicated conventions.
The Copyright Law that was published in NN No. 9/99 76/99 (hereinafter "CL") contains in
Article 2, paragraphs 1, 2, and 3 the following provisions:IP/C/W/262/Add.1
Page 3
"The authors' works of nationals of the Republic of Croatia, or of persons who are not
nationals of the Republic of Croatia but have their habitual residence in the Republic of
Croatia, made available to the public in the Republic of Croatia or abroad, as well as the
authors' works which have not been made available to the public, shall enjoy protection
pursuant to this Law.
The authors' works of foreign nationals and stateless persons, not made available to the public,
and firstly made available to the public in the Republic of Croatia shall enjoy. pursuant to this
Law, the same protection as the authors' works of nationals of the Republic of Croatia.
The authors' work;, of foreign nationals not firstly made available to the public in the Republic
of Croatia shall enjoy, pursuant to this Law protection within the framework of the obligationswhich the Republic of Croatia has assumed under international treaties or on the bases of the
de facto  reciprocity."
In accordance with the CL the authors of literary, scientific and artistic works shall enjoy
copyright protection as provided for in that Law (Article 1 of CL).
The works enjoying protection are defined by th e provisions of Articles 3, 4, 5 and 7 of CL).
Copyright shall include, according to Article 25 of CL, property right prerogatives (economic
rights) defined by Articles 30 - 41 and prerogatives of a personal nature (moral rights) defined byArticles 27 - 29 of CL.
The essential provisions on an exploitation of authors' works and their economic rights are
contained in Article 26, paragraphs 1, 3 and 4 of CL reading as follows:
"The author's economic rights shall consist of the rights of the author to the exploitation of his
work.
Unless otherwise provided in this Law, exploi tation of an author's work by another person
may take place only with the authorization of the author.
Unless otherwise provided in this Law or by a contract, the author shall have the right to a
remuneration for each and every exploitation of his work by another person."
Authors' economic rights shall last during the author's life and seventy years after his death ...
(Article 81 of CL).  Authors' moral rights shall subsist also after the termination of their economic
rights (Article 86 of CL).
SWITZERLAND
A. GEOGRAPHICAL INDICATIONS
1. Please explain in detail how your legislation provides protection for geographical
indications.
The Republic of Croatia provides for legal protection of indications referring to geographical
origin of goods in compliance with the provisions of the TRIPS Agreement.
General provisions on the compensation for damage of the Law on Obligatory Relations
provide for the protection of rights in terms of compensation for material damage.IP/C/W/262/Add.1
Page 4
The Law on Trade provides for the conditions to be fulfilled while performing foreign trade
operations. On the basis of the said Law, the Government enacts a regulation defining the goods
considered to be of imported origin, prescribes the method of issuing certificates and method of
certifying documents accompanying the importing goods, and provides for the cases in whichcertificates of origin relating to the importing goods shall be required.  The said Law establishes
criteria for the enactment of regulations on the origin of goods.  Supervision over the implementation
of the provisions of this Law shall be performed by inspection and customs bodies in compliance with
their authority established by special laws.
The said Law prohibits unfair market competition and provides for the legal proceedings
relating to the compensation for damage.  Amongst other things, selling of the goods which carrymarks or indications creating or likely to create  confusion in respect of the source, method of
production, quantity, quality or other features of the goods is considered unfair market competition.
This also includes promotion, advertising or offeri ng of the goods or services, which quote indications
or expressions referring to the reputation of another trader, to hi s goods or services, or to the goods of
another trader respectively.
The Law on the State Inspectorate provides for the supervision of the State Inspectorate over
the implementation of the law in the field of trade, and implementation of other provisions regulating,
among other things, trade operations, protection of consumers, quality of products, protection of
trademarks and geographical indications, production and trade of wines and other products made ofgrapes and wines, etc.
The Law on the Protection of Geographical Indications of Products and Services regulates
completely the protection of two kinds of indications: geographical indications and designations of
origin for all the products and services which comp ly with the legal requirements.  The protection of
these indications shall be acquired through their entry into the register of geographical indications and
designations of origin respectively.  The protection is harmonized with the minimum standards
provided by the TRIPS Agreement.
The Law and Regulations, on Wine regulate the procedure of controlling the origin and other
features of wines and wine products, as well as the qualitatively and quantitatively expressed wine
production conditioning its quality in the particular territory.
There are many other Regulations providing for the quality of particular products, such as
olive oil, meat or dairy products, associating the quality of a product with its geographical origin.
And finally, the Government regulates by the Decree on the Implementation of the Customs
Law, additional criteria for establishing the origin of goods, the production of which includes more
than one country, the manner of improving the origin of the goods, the manner of issuing certificates,
and specifies the bodies responsible for the certification of documents and provision of explanations
concerning the origin of goods so that customs authorities could proceed according to the rules of the
Customs Law.
B. PATENTS
2. Does your legislation grant patent protection to all categories of products or are there any
exceptions?  If so, please explain in detail what kind of exceptions exist  and how they comply with
Article 27 of the TRIPS Agreement.
According to Article 4, paragraph 1 of the Pa tent Law (NN No. 78/99) a patent shall be
granted for an invention which is new, which involves an inventive step and which is susceptible of
industrial application.IP/C/W/262/Add.1
Page 5
The patent protection shall exclude:
- the inventions relating to animal breeds, and plant varieties, and essentially biological
processes for the production of a plant or an animal, except for the inventions relatingto microbiological processes and products resulting from such processes.
- the inventions the publication or exploitation of which would be contrary to the
public order or morality.  The exploitation shall not be considered to be so contrary
merely because it is prohibited by a legal provision.
The cited provision of the Patent Law shows that it is in compliance with Article 27 of the
TRIPS Agreement.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of the
TRIPS Agreement, consider impor tation as "working" a patent (and therefore preclude compulsory
licensing, if a product is being imported)?
According to Article 52, paragraph 2 of the Patent Law any other person not having the patent
owner's consent shall be prohibited from:
- making, offering for sale, selling, using, or importing. and stocking for such purposes,
the product carried out according to the invention,
- using the process which is the subject matter of the invention, or offering the use
thereof,
- offering for sale, selling, using or, importing and stocking for such purposes, the
product which is obtained directly from a process which is the subject matter of the
invention
Article 232, paragraph 2 of the Penal Law (NN No.110/97) provides for a fine, or
imprisonment up to three years for a person who manuf actures, imports, transfers across a border line,
offers, puts into circulation, stocks or uses a product or a process which is the subject matter of thepatent protection.  Paragraph 4 of the same Article provides for seizure and destruction of the objects
intended for or used in the commitment of a crim inal act or resulting from such a commitment.
4. 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.
According to Articles 57 - 59 of the Patent Law:
The court in the Republic of Croatia shall be exclusively competent, and may grant a
compulsory licence on the request of any interested  person, if the patent owner does not exploit the
protected invention, or exploits it to the extent which is insufficient to satisfy the needs of the
Croatian market, and refuses to conclude a licence contract or sets forth non-market terms for the
conclusion of such a contract.
A request for the grant of a compulsory licence may be filed after the expiration of the period
of 4 years as from the filing date of the application, or after the expiration of the period of 3 years as
from the date of the patent grant, whichever occurs later.  If the exploitation of a protected invention
is of public interest (health, defense, protection and improvement of the human environment) or of a
special interest for a particular branch of economy, the compulsory licence may be granted even
before the expiration of the specified terms.IP/C/W/262/Add.1
Page 6
A compulsory licence shall not be granted if the patent owner proves the existence of the
legitimate reasons justifying the non-exploitation or insufficient exploitation of the protected
invention.
In the case of the grant of a compulsory licence, the patent owner shall be entitled to a
remuneration, corresponding to the economic value of the licence which shall be determined by the
court decision.
A compulsory licence shall be granted for the purposes of supplying the domestic market.  It
shall not be exclusive and the duration thereof is connected exclusively with the duration of reasons it
has been granted for.
A compulsory licence shall not be transferred without the production plant or the part thereof
respectively, in which the invention it is granted for has been exploited.
The patent owner may not prohibit to other persons offering for sale, sale or use of the
product previously put on the domestic market by him or by other person having his express consent.
5. Does your legislation provide for the principle of the reversal of burden of proof in a process
patent litigation?  Please cite the relevant provisions of law.
The Law on General Administrative Procedure (NN No. 53/91) in its Article 160 stipulates
that the decision on whether certain fact is required to be proved or not shall be made by the person
officially conducting the procedure, taking into account whether such fact may affect the solution of
the matter or not.
The Law on Legal Proceedings (NN No. 53/91) in its Article 219 stipulates that each party
shall state facts and propose evidence supporting i s request or contesting statements and evidence
provided by the counter-party.
Article 220 of the said Law provides for that evidence includes all the facts which are relevant
for the decision making, and, that the evidence to be used for the purpose of establishing relevant it
facts shall be decided by the court.
C. PROTECTION OF UNDISCLOSED INFORMATION
6. 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 of an agricultural chemical product is protected against disclosure and againstunfair 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
authorisation for his own product.  Does your legisl ation 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?
General rules on the protection of undisclosed information are contained in the Law on the
Protection of Data Se crecy (NN No. 108/96).
According to Article 19 of this Law, business secret shall comprise the data which are defined
as business secret by the Law, another regulation of a by-law of a company, of an institution or of any
other legal entity, and which represent a production secret, research and design results, as well as
other data, the communication of which to an unauthorized person would damage its economic
interests.IP/C/W/262/Add.1
Page 7
Furthermore, the data which are concerned to be a business secret shall not be communicated
nor made available to unauthorized persons, unless otherwise provided by a special law (Article 22,
paragraph 1)
The obligation of keeping the data secret shall be met until the person authorized to establish
the secrecy of a certain data establishes that the need for keeping its secrecy ceased to exist. For
official and business secrets such obligation may cease to exist at the expiration of the term of office,
service or employment of the person dealing with secret data, if not provided otherwise by the law or
regulation based on that law, and that:
a) for data established as official secret - five years counting from the discontinuance of
office, service or employment in the body the data of which are protected by a certain degree
of secrecy,
b) for data established as business secret - one year counting from the discontinuance of
office, service or employment in the body the data of which we protected by a certain degreeof secrecy (Article 28, paragraph 3).
Additional protection of data secrecy may be provided by enterprises in their statutes,
regulations, employment contracts and contracts made with their business partners.
Test data and other information submitted in the procedure for market authorization of a
pharmaceutical or of an agricultural chemical product are protected by special regulations enacted by
the Ministry of Health and the Ministry of Agriculture and Forestry.
Article 18 of the Law on Drugs and Medical Pr oducts (NN No. 124/97) stipulates that the
documents related to pharmaceutical or medical products shall be treated as trade secrets.
D. ENFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective deterrents toinfringements of intellectual property rights.
Article 285 of the Penal Law of the Republic of Croatia provides for a criminal act of wilful
trademark counterfeiting, as well as for the sanctioning of infringements of other. intellectual property
rights (except patents) committed with the aim of acquiring a financial gain.  The infringement of
intellectual properly is subject to sanctions ranging from a flit to imprisonment up to five years.  The
Penal Law also provides for the possibility of ordering safety measures comprising seizure and
destruction of objects intended for the commitment of criminal act concerned, as well as of objectsresulting therefrom (Article 285, paragraph 5).
Sanctions applying to patent infringements are provided for by Article 235 of the Penal Law.
Sanctions applying to patent, infringement, range from a fine to imprisonment up to five years.
Paragraph 4 of the said Article provides for seizure and destruction of objects intended for or used inthe commitment of a criminal act or resulting therefrom.
The Penal Law also provides for a criminal act comprising unauthorized reproduction of works
protected by copyright with the aim of acquiring financial gain (Articles 229, 230 and 211).
Sanctions applying to perpetrators range from a fine to imprisonment up to five years, including asafety measure comprising seizure and destruction of objects intended for or used in the commitment
of a criminal act or resulting therefrom (Article 230, paragraph 6, and Article 231, paragraph 4 of the
Penal Law).IP/C/W/262/Add.1
Page 8
Special laws applying to particular fields of intellectual, property provide for infringements of
particular intellectual property rights and sanctions for such infringements.
8. Please describe any new initiatives that are planned to improve enforcement of intellectual
property rights in your country, particularly initiatives related to criminal enforcement.
Presently, the Republic of Croatia has not new initiatives in this field, because the intellectual
property rights is in compliance with the provisions  of the enforcement of the TRIPS Agreement.  But
there is initiative for the provision of special measures related to the protection of intellectual property
rights on border line.  Namely, the enactment of the Decree on Special Border Measures for the
Protection of Intellectual Property Rights is underway, whereby the Croatian legislation will achieve
full harmonization with the provisions of the TRI PS Agreement also in this segment of intellectual
property protection.
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