Vol. XII No.3
March 2007



Intellectual Property Protections in Romania...

The legislative basis for the protection of intellectual property in Romania are Articles 44 and 136 of the Romanian Constitution, as amended, which represents the fundamental law for the protection of the inviolability of private property in Romania. With Romania’s accession to the European Union, all of the relevant legislation has been harmonized to EU standards. Indeed, the legislation is expansive in its protection of intellectual property and includes protection for such properties as data bases, artist’s rights regarding the resale of their works, certain aspects of authorship in the IT field, and even satellite and cable transmissions. Therefore, the legal regime for the protection of intellectual property in Romania is in line with international and European standards, although with piracy and counterfeiting still rampant in Romania, enforcement of intellectual property rights remains a serious concern. The application of the relevant legislation represents a major challenge for the Romanian authorities that have yet to mount a serious effort at combating widespread counterfeiting of intellectual property.

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Inventions, Patents and Utility Models
In order for an invention to be protected in Romania it must first be registered with the State Office for Inventions and Trademarks (the “OSIM”) by the grant of a patent under the terms and conditions provided by Law 64/1991.

A patent can be granted for any invention of a product, creation, or procedure in all the fields of knowledge, provided that it observes the following conditions: (i) novelty – the invention must not be comprised in the present technical development level; (ii) it entails an inventive activity – it is not an obvious result of knowledge on the basis of existing technical developments; and (iii) it is susceptible to industrial application. Patents cannot be granted for inventions that breach the public order, morals, detrimentally affect the health and life of humans, animals or plants or which gravely affect the environment by their commercial exploitation, for any species of plants and breeds of animals, essentially biological procedures for obtaining plants and animals, and inventions that have as their objective the human body or organs, cells, genes and so on. Moreover, ideas, discoveries, scientific theories, mathematical methods, computer programs, economic or organizational solutions, flow charts, educational and training methods, city planning systems, plans and methods, physical phenomena, culinary recipes, and aesthetic creations are not considered inventions and therefore are not patentable.

The right to the patent belongs to the inventor or to his successors in title. Where two or more inventors have created an invention jointly, each has the status of joint inventor and the rights belong to them jointly. As an exception, the right to the patent may belong to the inventor’s employer under certain circumstances.

The Application procedure for the patent
In proceedings before OSIM, an attorney-at-fact, on the basis of a proxy submitted to OSIM, may represent the applicant, assignor or owner or any other interested person. Foreign applicants may submit a file for a patent only through a patent attorney holding a power of attorney. Inventions created by Romanian natural persons on Romanian territory may not be patented abroad until a patent application has been registered at OSIM. An invention for which a patent application has been submitted to OSIM may not be disclosed without the consent of the applicant, until its publication. The submission of a patent application confers a priority right with regard to other possible claims regarding the same invention or similar ones. The priority period starts from the date of the submission or from the claimed and recognized priority date for a previous submission, in relation to any other submission regarding the same invention having a later date or recognized priority date.

Patent applications are published as soon as possible after the expiration of a period of 18 months from the date of the submission, or 12 months if an emergency fee is paid. The publication grants only temporary protection to the applicant’s right to the patent. This protection becomes final with OSIM’s decision to grant the patent. If OSIM decides not to grant the patent, this protection is considered never to have existed.

OSIM examines and then either grants or refuses to grant the patent within 18 months from the date of the submission. An excerpt of the decision is published in the Official Bulletin of Industrial Property (hereinafter referred to as “BOPI”) within 60 days and becomes effective on that date. OSIM may revoke its decisions ex officio for failure to comply with the conditions laid down by law or for any clerical errors until the decision is made public. The applicant may withdraw his application in writing. The date of the publication in BOPI is considered the date of the issuance of the patent. The owner has an exclusive right of exploitation throughout the term of protection of the invention (20 years). The owner also has the right to waiver of the patent. If the patent is the subject of a license agreement, the waiver is possible only with the consent of the licensee. Third parties may freely exploit the invention or a part of such invention. The waiver is registered with OSIM and comes into effect on the date of its publication in BOPI. Any interested party may challenge OSIM’s decisions directly at OSIM within 3 months from the communication of the decision. Claims having as their object only clerical errors or omissions are not subject to any fees. Any interested party is entitled to ask OSIM, in writing and on valid grounds, for the revocation of the patent decision within 6 months from its publication. The claim for revocation is settled within 6 months of the registration thereof at OSIM.

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Trademarks are symbols capable of being graphically represented which serve to distinguish the goods or services of a natural or legal entity from those belonging to other persons. A trademark is an essential element of the strategy, public relations and marketing of many businesses. It serves to distinguish between the goods and services of one company from those of its competitors.

Geographic indications are designations which serve to identify goods originating from a country, region or locality if a given quality, reputation or any other characteristic could be essentially attributed to that geographical area.

The rights deriving from a trademark or geographic indication are acquired and protected by the registration with OSIM in accordance to Law No. 84/1998 on trademarks or geographic indications. Most significantly, notorious trademarks even if they are not registered in Romania are acknowledged and protected on the territory of Romania. Trademarks are capable of being registered if they observe the following conditions: (i) fit for graphic representation - the symbol chosen to become a trademark must be fit for graphic representation by full lines, colors, designs, on a tangible medium; (ii) distinctive- the trademark must be capable of identifying a product or a service in a manner that should allow consumers to recognize and acknowledge it as such; (iii) available - the trademark must not affect any prior intellectual property right; and (iv) lawful - the trademark must not consist of elements which are contrary to public order and morals, bear false or deceiving indications, defamatory signs to the representative symbols of the state, to international organizations or things having the value of universal symbols.

Trademarks can be individual, when used by one company, or collective or certification marks. A certification mark indicates that the goods or services it represents are certified by the trademark owner in respect of the quality, material, manufacturing process or manner of service, accuracy or any other characteristics. The rights of the trademark owner are confirmed by the certificate of registration of the trademark which is issued by OSIM. The registration of the trademark confers upon the owner the right of exclusive use of the trademark for the goods and/or the services that have been registered, for a period of 10 years from the date of the submission as well as the right to prohibit others from the use of that particular trademark or a fraudulent imitation of it. If the trademark owner requests, the registration can be renewed after the period of protection expires for another period of 10 years. The rights deriving from a registered or renewed individual trademark may be transferred in whole or in part, in exchange for a fee or free of charge. Collective trademarks may not be transferred.

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Geographic Indications
Geographic indications for goods are protected in Romania by registration with OSIM. They may be used only by persons manufacturing or selling the products designated by the registered indications. Any association of producers carrying out a manufacturing activity in the geographic area for the goods specified in the application must apply for the registration of a geographic indication. OSIM registers geographic indications and grants the applicant the right to use them provided that the Ministry of Food and Agriculture or other competent authority from the applicant's country of origin certifies: the geographic indication to be registered; the goods that may be sold under this indication; the geographic production area; and the characteristics and the manufacturing standards to be met by such goods in order to be sold under this indication. If the application satisfies the terms of the law, OSIM requests the registration of the geographic indication in the National Register of Geographic Indications and grants the applicant the right to use it.

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Industrial Designs and Patterns
Industrial designs are the designs that have been granted a certificate of registration by OSIM in accordance with Law No. 129/1992 on Industrial Design. This confers to their owner an exclusive right of exploitation in Romania. Patterns are also subject to registration with OSIM in order to be acknowledged and protected as such on Romanian territory. Industrial designs or patterns, where the exterior appearance of a product is concerned, may be registered if they have the following characteristics: (i) novelty - the industrial design or pattern must not have been made public prior the registration date; and (ii) individuality - the image impact of the industrial design or pattern on the common viewer must be different than the impact on such a viewer of any other industrial design or pattern which has been made public before the date of the registration.

An industrial design and pattern is protected for a period of 10 years from the date of the submission of the application with OSIM and is capable of being renewed for 3 successive periods of 5 years each. During the period of its validity, the registration certificate grants to its holder an exclusive exploitation right for the industrial design or model, as well as the right to forbid the performance by third parties, without the holder’s approval, of any acts, such as: reproduction, manufacturing, commercialization of a product incorporating the industrial design or pattern or where such industrial design or model applies.

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Topographies of Semi-Conducting Products
The topography of an integrated circuit (hereinafter referred to as "topography") represents a three-dimensional disposition –in whatever way it may be expressed- of certain elements of an integrated circuit, at least one of which is active, and with all or some interconnections of the integrated circuit or such a three-dimensional disposition realized for the manufacturing of the integrated circuit. The rights over semi-conducting products’ topographies are subject to registration with OSIM for such topographies to be acknowledged and protected as such in Romania in accordance with Law No. 16/1995 on the protection of topographies of semiconductor products. Semi-conducting products topographies can be protected if that they are original. An original topography is one that is the result of an intellectual effort of its creators, and that, when it was created, was not usual for topography creators or for semi-conducting products manufacturers. The rights over protected circuits will not be applicable to concepts, procedures and devices nor to the pieces of information stored on the topographies.

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Copyright is governed in Romania by Law 8/1996 regarding copyright and related rights. Copyright is granted to original works of an intellectual creation in literature, art or science. Therefore the main condition for their protection is originality. The works also have to take a concrete form of expression and be susceptible to be made public. The protected work may be unfinished and it may not have been made public yet, as the right is born from the moment of its creation. Furthermore, the copyright is independent with regard to any other form of registration with concern to that particular work.

Copyright protection applies to works: (i) whose authors are Romanian citizens or have a residency in Romania, even though such works have not been publicized yet; or (ii) represent architectural works, located on the Romanian territory. Foreign holders of a copyright benefit from the protection granted by a relevant international legal convention or treaty to which Romania is party. In the absence of such enactments, foreigners will benefit from the same treatment as do Romanians, based on the principle of reciprocity. Protected works can be original or derivates and individual, joint or collective.

The main holder and the primary subject is the author of the work, the one who has directly created it. He can only be a natural person. The secondary subject is the person who has been assigned some prerogatives from the copyright. This can be either a natural person or a legal entity. Patrimonial copyrights are, as a matter of principle, protected during their author’s lifetime plus another 70 subsequent years after his/her death. In certain cases, the period of protection is shorter: collective works are protected for 70 years from the date they are made public, or from the date of their creation, as the case may be. After the protection ends all such works enter the public domain. The personal non-patrimonial or moral rights, such as the right to claim the authorship of the work and work integrity, and to oppose any amendment that may harm the author’s reputation, are transmissible by way of succession for an unlimited period of time. Copyright is a personal right of the author and has a patrimonial side and a moral one. The moral rights are: the right to make the work public, the right of authorship, the right to the name, the right to its integrity and the right to withdrawal. There are more patrimonial rights, out of which the most common are: the right of use and exploitation, the right to consent to its use and exploitation by other persons and the right to receive a percent of every sale.

Copyright related rights
There are several rights which are related to copyright. They protect the interpretations, acting and shows of the artists, sound recordings and the phonograms of the producers of such recordings and their TV and radio broadcasts.

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Simply put, Romania’s legislative scheme for the protection of intellectual property is similar to that of other EU member states. The issue in Romania is not the scope or nature of the the law protecting IP, but in its less than stellar enforcement.

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Editors Note: It is our policy not to mention our clients by name in The Romanian Digest™ or discuss their business unless it is a matter of public record and our clients approve. The information herein is correct to the best of our knowledge and belief at press time. Specific advice should be sought from us, however, before investment or other decisions are made.

Copyright 2007 Rubin Meyer Doru & Trandafir, societate civila de avocati. All rights reserved. No part of The Romanian Digest™ may be reproduced, reused or redistributed in any form without prior written permission from the publisher.

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