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Tunisia: IPR PROTECTION IN TUNISIA

     
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Reference ID: 06TUNIS1818
Created: 2006-07-19 05:28
Released: 2011-08-30 01:44
Classification: UNCLASSIFIED
Origin: Embassy Tunis

VZCZCXRO2799
PP RUEHTRO
DE RUEHTU #1818/01 2000528
ZNR UUUUU ZZH
P 190528Z JUL 06
FM AMEMBASSY TUNIS
TO RUEHC/SECSTATE WASHDC PRIORITY 1316
RUCPDOC/USDOC WASHDC PRIORITY
INFO RUEHAS/AMEMBASSY ALGIERS PRIORITY 7258
RUEHFR/AMEMBASSY PARIS PRIORITY 1605
RUEHRB/AMEMBASSY RABAT PRIORITY 8188
RUEHTRO/AMEMBASSY TRIPOLI PRIORITY 0364

UNCLAS SECTION 01 OF 04 TUNIS 001818
 
SIPDIS
 
SIPDIS
 
STATE PASS TO USTR (BELL)
STATE FOR NEA/MAG (HARRIS), EB/IPE,
USPTO (ADLIN AND POGODA)
USDOC FOR ITA/MAC/ONE (ROTH) AND CLDP (TEJTEL)
PARIS FOR NEA WATCHER
 
E.O. 12958: N/A
TAGS: KIPR ETRD ECON TS
SUBJECT: IPR PROTECTION IN TUNISIA
 
REF: TUNIS 1590
 
1.  SUMMARY:  Tunisia has taken significant steps to
strengthen its intellectual property rights (IPR) enforcement
throughout 2005 and 2006.  There has been a noted change in
attitude towards IPR among Tunisian officials, legal experts,
and businesses.  They now consider IPR not only as a legal
tool for the protection of a product but also an incentive to
stimulate economic development.  The GOT has launched a
campaign to expand IPR awareness and to fight counterfeiting
and piracy.  On May 29, 2006, in observance of National
Culture Day, President Ben Ali ordered the updating of the
copyright law 1994-36 concerning literary and artistic
copyrights.  New legislation currently before Parliament
seeks to grant enhanced authority to the Tunisian Copyright
Authority, (Organisme Tunisien de Protection des Droits
d'Auteurs - OTPDA).  There has been a notable increase in the
number of media reports on problems related to counterfeit
products available in the country's markets.  This has led
the GOT to take a proactive legal position on IPR for the
first time, and to instruct local authorities to give Customs
officials greater authority to seize counterfeit products
without requiring a prior complaint by the patent holder.
END SUMMARY.
 
------------------------------
Upgrade of the Legal Framework
------------------------------
 
2.  President Ben Ali's May 29 decision to update the law on
literary and artistic copyrights (1994-36) is a signal to
foreign investors and to Tunisian enterprises that the GOT is
serious about strengthening and enforcing its IPR regime.
The USG has advocated for significant reform and stronger
enforcement of existing IPR laws, and potential investors
both foreign and domestic criticized Tunisia,s lack of IPR
enforcement.  As a consequence of this pressure, the GOT has
taken steps to improve its IPR regime.
 
3.  In 2005, Tunisian ministries of Interior, Commerce,
Finance, Health, and Industry decided to coordinate their
efforts in order to crack down on the parallel market and its
suppliers.  They drew up a national plan called "drying up
the sources," which tasked the relevant ministries with
proactively enforcing current IPR laws.  Circulars were
issued that explained the steps to be followed when carrying
out enforcement actions.  In conjunction with this national
plan, the Ministry of Commerce has embarked on a campaign to
dedicate the necessary human resources and equipment to
enable customs to focus on IPR enforcement.  The GOT is also
working on an amendment to its Customs laws.  According to
official sources, this amendment will give customs officials
greater authority to respond effectively to IPR violations.
The national plan also put in place the following:
 
-  Use of scanner checks of merchandise at territorial
crossing points.
 
-  Support for coordinated follow up inspections/raids on the
various distribution networks.  Such inspections/raids will
involve all available enforcement apparatus (customs, the
police and the national guard).
 
-  Tightened control on all types of commercial exhibitions
in order to prevent the inclusion of counterfeit imported
goods.
 
----------------------------
IPR Promotion Through Events
----------------------------
 
4.  Local media sources support the national IPR campaign by
increasing public awareness.  Newspapers are releasing more
reports on counterfeit products, piracy and illegal imports.
They highlight the risks of consuming counterfeit products
and the harm generated on both public health and the economy.
 They also publish surveys on the country,s weekly markets
used by parallel market operators.  In February 2006, the
private Tunisian TV channel Hannibal broadcast a program that
asked whether people were aware of the damage caused to the
economy by their purchases of counterfeit products.  Most of
the people interviewed, clients and sellers, said they are
aware of IPR violations but they would not have been able to
 
TUNIS 00001818  002 OF 004
 
 
setup a business or buy DVDs, for example, if not for
recourse to counterfeit products.
 
5.  On April 26, 2006, Tunisia celebrated World Intellectual
Property Day.  The Tunisian Ministry of Culture delivered a
statement stressing the role of culture as one of the pillars
for change.  Officials from INNORPI
(Institut National de la Normalisation et de la Proprit
Industrielle) and the ONA (National Handicraft Agency), held
a seminar on the protection of Tunisian handicrafts.  The aim
was to inform and educate artisans about intellectual
property protection and the importance of copyrighting and/or
patenting their creations.  Presenters stressed the role of
IPR as a way to increase the economic contribution of the
handicraft sector to GDP growth.  They focused on the
importance of concepts related to geographic indicators and
registered designation of origin (RDO).  Typical Tunisian
handicraft products with RDOs were used as examples (carpets,
Chechia -- traditional Tunisian hats, etc).  They explained
to the audience that by obtaining an RDO these products are
protected in both domestic and international markets.  An
expert on IPR gave a presentation on the World Intellectual
Property Organization (WIPO) and on the definition of IPR.
 
6.  On April 26, 2006, the Tunisian Association of Inventors
held a conference on the utility model.  A utility model
(aka: petty patent or innovation patent) is an intellectual
property right to protect inventions.  It is an exclusive
right granted for an invention, which allows the right holder
to prevent others from commercially using that invention
without permission for a certain period of time (usually
between 7-10 years).  The speaker was a Tunisian lawyer, Mr.
Ameur Boudhiba.  He explained that the patenting process
requires 4 to 5 years, whereas the utility model requires
much less time (averaging 6 months).  The requirements for a
utility model are less stringent than those for a patent.
Arguing that the cumbersome Tunisian patent procedures
discourage researchers from applying for patents, he urged
Tunisian authorities to amend the patent law to include the
concept of a utility model.
 
7.  The National Consumers' Defense Association (ODC),
INNORPI, and OTPDA are educating the public on the dangers
and economic costs of counterfeit products and are attempting
to influence public opinion through periodical newsletters.
They also broadcast messages and ads dealing with the
parallel market and IPR issues (on national TV and radio
channels).
 
---------------------------------
Enforcement: Signs of Improvement
---------------------------------
 
8.    The U.S. Department of Commerce's Commercial Law
Development Program (CLDP) and the U.S. Patent and Trademark
Office's (USPTO) technical assistance and capacity building
programs have had a tremendous affect on and have provoked a
positive change in attitude toward IPR among GOT officials.
On January 28, 2006, the Tunis Court of Justice found a
Tunisian shoe manufacturer guilty of trademark infringement.
The manufacturer was producing counterfeit products of a US
Company, Caterpillar Inc.  (Note: CAT Footwear is a
partnership between Caterpillar INC and Wolverine World Wide
Inc, which produces industrial footwear using the CAT and
Caterpillar trademarks. End Note.)  The court ordered the
manufacturer to pay a penalty of TND150/per day (USD 113.15)
until it stops manufacturing the counterfeit products.  In
addition, the court ordered the manufacturer to pay all costs
related to the seizure and destruction of all counterfeit
products bearing Caterpillar trademarks, Caterpillar and CAT.
 The court also ordered the manufacturer to pay TND 5000 (USD
3,771.59) sentimental loss, TND 123 (USD 92.78) judiciary
fees, TND 300 (USD 226.3) expertise fees and TND 400 (USD
301.72) court cost fees.  This encouraging result has led
other well-known shoe manufacturers such as Nike, Addidas and
Puma to seriously consider suing local counterfeiters of
their products in the hopes of achieving similar results.
 
9.  Official sources indicate that there is new IPR
legislation to be included in the 2007 financial law
(Tunisia's annual budget plan currently being prepared).
This proposed legislation will allow Customs to seize
counterfeit goods as soon they are discovered.  It will also
 
TUNIS 00001818  003 OF 004
 
 
close companies importing and/or marketing counterfeit
products for a period of time.  Repeated infractions will
result in doubling of prescribed penalties.  The same law
will implement tightened control at the borders against
imports from China and Asia to ensure the legitimacy of these
products.  If/when this legislation is enacted, post will
report septel.
 
10.  The Ministry of Communications Technology has formed a
Business Software Alliance Partnership with Microsoft
(reftel) and has held several IPR awareness events in the
past two years.  The Ministry and Microsoft signed an
agreement on the fringes of a workshop in Cape Town,
organized by Microsoft July 10-11, 2006, on improving the
competitiveness of African Countries.  Under this agreement
all software will be updated with certified Microsoft
software and the industry will be regulated.  Microsoft will
provide support to both the public and private sector in
order to develop their competitiveness and strengthen both
sectors' complementarity.  Future GOT tenders for IT
equipment will specify that the equipment be Microsoft
compatible.  A training program to educate the public on the
need to use legitimate software will also be set up.
 
--------------------------
Background/Legal Framework
--------------------------
 
11.  Tunisia is a member of the Bern Convention for the
Protection of Literary and Artistic Works.  The Tunisian
Copyright Law is Law No. 36/1994.   Although the law was
published in the Official Gazette in 1994, no procedure had
been implemented for registering a copyright until now.
Protection is granted to authors of literary, artistic and
scientific works whatever the value, kind, purpose or means
of expression.  Generally, the protection is provided for a
work whose means of expression is written, recorded, drawn,
or via an image or a motion picture.  It also includes
creative titles and computer software, which is published,
acted or displayed for the first time in Tunisia.  Works may
be protected for the lifetime of the author plus 50 years
following his/her death.  Software is protected for 25 years
from the grant of the copyright.  The National Council for
Culture is entitled to authorize documentary, translations,
educational, cultural or scientific use of a copyrighted
product under certain conditions.  Copyrights are registered
by the Organisme Tunisien de la Protection des Droits
d'Auteurs (OTPDA).  The Civil Court prosecutes all copyright
violations and is entitled to confiscate revenues and
counterfeit copies.
 
12.  Tunisia is also a member of the November 6, 1925 Hague
Agreement for the International Registration of Designs and
Industrial Models.  Designs and industrial models are
protected through registration with INNORPI.  A design or an
industrial model registration is granted for five, ten or
fifteen years starting from the date of filing the
application.  A registrant for the shorter terms has the
option of applying for an extension of the protection period
up to the maximum of fifteen years.  A registration of a
design or an industrial model is subject to cancellation in
the event any interested party requests such a cancellation
before the competent tribunal, provided that the requestor
has also filed an application for the same design or model.
The registration, assignment, or cancellation of a design or
industrial model are published in the Al-Muwassafat quarterly
gazette and entered in the Designs Register.  Any
infringement or unauthorized use of a registered design or
industrial model is punishable under current law.
 
13.  Once an application for the registration of a patent is
filed, it is examined as to form only.  The Tunisian Patent
Office does not carry out any examination as to novelty or
merit of the invention.  A patent application is published in
the Al-Muwassafat gazette, together with a summary of the
contents.  The grant of a patent is also published.
Opposition to the grant of a patent may be lodged within two
months from the date of publication of the application.
There is no provision in the law for appealing the decision
of the Registrar.  The provisions of the Patent Law in
Tunisia stipulate that a patent application should be filed
before the invention has been published, or used, or has
otherwise received sufficient publicity to allow it to be put
 
TUNIS 00001818  004 OF 004
 
 
into practice either in Tunisia or abroad.  A patent is valid
for twenty years from the date of filing of the patent
application.  Annuities are payable from the date of filing
and due on the anniversary date of filing.  A late fine,
which may be calculated at the rate of 8% per month is
payable when the annuity is paid within the six month grace
period.  The right to a patent may be assigned or transferred
through succession. The assignment of patent applications and
granted patents must be made in writing.  An assignment shall
have no effect against third parties unless it has been
entered in the relevant records of the Patent Office.
Tunisian law requires use of a patent within four years from
the date of filing or three years from the date of granting
of a patent.  As of the 10th of December 2001, Tunisia became
the 115th member state of the Patent Cooperation Treaty
(PCT). Any international application made after December 10,
2001 may designate Tunisia.
 
14. GOT issued a new trademark law on April 17, 2001 (No.
36).  This law replaced the Tunisian Trademarks and Trade
Names law Dated June 4, 1889 and its amendment of 1936.
Tunisia follows the international classification of goods and
services (Nice Classification) for the purpose of the
registration of trademarks.  The revision of class 42 and the
creation of classes 43 to 45 was adopted on January 1, 2002.
The law contains several TRIPS compliant aspects.  These are
the protection of colors, sound and collective marks,
acknowledgment of well-known trademarks, and the alteration
of the registration procedure allowing for examination by
Tunisian authorities.  The registration is published in
Al-Muwassafat for two months, during which time any party can
file its opposition to the granting of a trademark.  Once the
opposition period has passed if no opposition has been filed,
the trademark is registered and a certificate of registration
is issued.  Protection under the law is granted for 10 years
from the filing date.  Fines levied by court decisions on
infringers can range from TND 5,000 (approximately USD 3,800)
to TND 50,000 (approximately USD 38,000). The law also
requires use of a trademark within a period of five years
after it has been granted.
 
15. Comment.  The recent efforts by GOT to proactively
enforce existing IPR laws and to bring new strengthened
legislation into force signal that there has been a positive
shift in attitude toward IPR.  The national plan seems to be
having a very positive effect on IPR enforcement in Tunisia.
End Comment.
HUDSON

 
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