RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q4/JPN/1
17  September 1998
(98-3537)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION ON ENFORCEMENT
JAPAN1
The present document reproduces the introductory statement made by the delegation of Japan,
the questions put to it and the responses given in the review of legislation on enforcement in thecontext of the Council's meeting of 17-21 November 1997.
2
_______________
I. INTRODUCTORY STATEMENT
General
We, the Government of Japan, as a member of the WTO, believe that the obligations which
we are required to satisfy under the TRIPS Agreement are sufficiently fulfilled and also in theenforcement of intellectual property rights prescribed as Part III of TRIPS Agreement.
Suitable provisions to ensure enforcement related to intellectual property are found not only in
intellectual property laws, like the Patent Law, Utility Law, Trademark Law, Design Law andCopyright Law but also in the Civil Law and Customs Tariff Law.
The European Comm unities and their Member States;  H ong Kong, China;  Switzerland;  and
the United States of America have posed questions on Japan's legislation related to enforcement.  Wewould thank those Members for giving us an opportunity to re-study our legislation.
Adding to that, as to our present situation, our responses to the Checklist of Issues on
Enforcement
3 give you a clear picture.  It includes sufficient and ample information to satisfy your
interest.
Border measures
I would like to explain the outline of the Japanese border enforcement regime.  Article 21 of
the Customs Tariff Law stipulates that goods which infringe on patent rights, utility model rights,industrial design rights, trademark rights, copyrights, neighbouring rights and circuit layout rightsshall not be imported.  Based on this provision, the Customs authorities are engaged in lawenforcement at borders.
                                                     
1 As regards laws and regulations relevant to the area under review and notified by Japan under
Article 63.2 of the Agreement, reference is made to documents IP/N/1/JPN/1; IP/N/1/JPN/E/1 andIP/N/6/JPN/1.
2 The minutes of this meeting have been circulated as document IP/C/M/16.
3 Document IP/N/6/JPN/1.IP/Q4/JPN/1
Page 2
One of the salient features of Japanese border enforcement is that the Customs authorities are
the competent authoritie s as stipulated in section 4 of Part III of  the TRIPS Agreement in most cases.
The Japanese Customs authorities not only suspend the release of goods which are suspected toinfringe intellectual property rights, but also conduct an identification procedure where the Customauthorities judge whether th e suspected goods really do infringe in tellectual property rights or not.  In
this connection I would like to draw your attenti on to our reply to question 12 from the European
Communities and their Member States concerning the procedure and legal basis pursuant to whichJapan has implemented Article 55 of the TRIPS Agreement.
The Customs authorities conduct border enforcement based on applications for the suspension
of the release into free circulation of goods which infringe trademark rights, copyrights andneighbouring rights pursuant to Article  51 of the TRIPS Agreement.  In addition to enforcement based
on an application, the Customs au thorities conduct borde r enforcement as ex officio action.  In this
connection, I would like to draw your attention to our reply to question 28 from the United States,concerning the forms of intellectual property subject to the provisions of Article 53.2 of the TRIPSAgreement.
Now I would like to explain the procedures the Customs authorities follow after they detect
goods which are suspected to infringe intellectual property rights.  As described in our answers toquestions 11 and 14 from the European Communities and their Member States, in cases where theCustoms authorities believe that  there are any goods that correspond to goods which infringe
intellectual property rights, the Customs authorities shall notify the importer and the right holder tothe effect that they suspend the goods and take th e identification procedure.   The Custom s authorities
can start the identification procedure based on an application as well as ex officio action.  Theidentification procedure, as an ex officio action, is stipulated in the same provision and in the samemanner as that for an application under Article 52 of the TRIPS Agreement.
Finally, I would like to touch upon two questions both the United States and the European
Communities and their Member States asked Japan.  The first one is question 27 from the US andquestion 10 from the EC concerning the period of time for responding to a request for suspension ofrelease of goods pursuant to Article 52 of the TRIPS Agreement.  The answer is as follows: althoughthere does not exist any provision on "reasonable time" the Customs authorities make notification toright holders as expeditiously as possible.  The second one is question 29 from the US and question 17
from the EC concerning de minimis  imports stipulated in Article 60 of the TRIPS Agreement.  The
answer is as follows: border enforcement applies only to goods imported on a commercial basis, andthus does not apply to small quantities of goods of a non-commercial nature, for example those carriedby passengers or sent in small consignments for personal use.
II. REPLIES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
1. Could the Government of Japan please clarify the following.  What is the prevailing
interpretation of "technical and business secrets" in Article 281 of the Japanese Code of CivilProcedure by courts and legal doctrine in Japan? Does it effectively prevent that any type ofconfidential information would be required to be submitted by a party to civil proceedingsagainst that party's will?  If so, could the Gov ernment of Japan please explain how and on what
legal basis such confidential information wo uld be protected (Article 43.1 of the TRIPS
Agreement)?
It is understood that under Article 281 of the current Code of Civil Procedure, "technical
secrets" means things which would lose values in case the secret might be revealed and "businessIP/Q4/JPN/1
Page 3
secrets" means things which would give grave economic impacts on the business, causing maintenance
of the business impossible or enormously difficult in such a case.
Article 281 of the Code of Civil Procedure pr ovides for legitimate refusal of testimony and
obligatory production of documents provided for in Article 312 is restrictive.  These provisions ensurethat parties are not forced to present secret information against their will.  Please refer to Japan'sresponses to questions 3 and 4 of the Checklist of Issues on Enforcement
4 in this respect.
[Follow-up question from the EC]
Could the Government of Japan please explain the system for protecting personal or
trade secrets against disclosure in court proceedings as contained in Law No. 109 of 26June 1996 and, in particular, describe in detail which type of confidential information the newLaw will protect?
Article 92 of the new Code of Civil Procedure provides that where secrets are contained in
lawsuits records a court may decide, on the request of the parties concerned, that inspection orreproduction of the secret parts be allowable only for the parties (in other words, third parties areprohibited to inspect, etc.).
"Secrets" whose inspection, etc. may be restricted are the following two kinds:
(a) Very important secrets about the private life of the parties and the inspection, etc. of
which by the third parties may extremely damage the maintenance of their social life;
and
(b) Trade secrets are provided for in Article 2(4) of the Unfair Competition Prevention
Law held by the parties.
2. Please explain the procedure and the legal basis pursuant to which a Japanese court has
the authority to grant an injunction preventing the entry into the channels of commerce in Japanof imported goods that involve the infringement of an intellectual property right, immediatelyafter customs clearance of such goods (Article 44.1 of the TRIPS Agreement)?
A Japanese court has the authority to issue an injunctive order based on the right of injunction
(Article 100 of the Patent Law, Article 112 of the Copyright Law and the like) of the right holder ofthe intellectual property when a lawsuit is instituted by the applicant.  In addition, the court has theauthority to issue a provisional order under the Code of Civil Preservative Procedure to preserve suchright of injunction.  Please refer to Japan's responses to questions 10 and 11 to the Checklist of Issueson Enforcement
4 in this respect.
[Follow-up question from the EC]
In Japan's response to question 10 of the Checklist of Issues on Enforcement4 it is stated
that a court has authority, by way of provisional measure, to prohibit infringing goods fromentering into channels of commerce.  Could the Government of Japan please confirm that thisalso applies to imported goods immediately after customs clearance of such goods?
                                                     
4 Document IP/N/6/JPN/1.IP/Q4/JPN/1
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Where imported goods are infringing intellectual property rights and the right holder thereof
is entitled to the right of injunction (cf. Article 100 of the Patent Law, Article 112 of the CopyrightLaw), a court has the authority to issue a provisional order to preserve the right of injunction.  Thisalso applies to imported goods immediately after customs clearance.
3. Please explain how, in practice, Japanese legislation implements Article 45.1 of the
TRIPS Agreement with respect to the obligation that damages of the right holder for the injuryhe/she has suffered should be compensated adequately.
A person who infringes a right of the right holder of intellectual property knowingly or by
negligence is obliged to compensa te damages (Article 709 of the Ci vil Code).  In addition provisions
concerning presumption of damages and of negligence are set out in the Patent Law or other laws onintellectual property rights.  Please refer to Japan's response to question 5 of the Checklist of Issueson Enforcement
5 for more detailed information.
4. In ordering the type of remedies described in Article 46 of the TRIPS Agreement, will aJapanese court take into account the need for proportionality between the seriousness of the
infringement and the remedies ordered as well as the interests of third parties?  Please explainhow and on what legal basis this is done (Article 46 of the TRIPS Agreement).
Although there are no expressly stated provisions in the laws, it is commonly accepted that the
court should consider the necessity to strike a balance between seriousness of the infringement and theremedies ordered as well as the interests of third parties when the court orders remedial measures in
Article 46 of the TRIPS Agreement.
5. Is it the case that pursuant to the Japanese Trademark Law it would be sufficient, with
regard to counterfeit trademark goods, to remove the trademark unlawfully affixed to permitrelease of the goods into the channels of commerce in Japan?  Please explain (Article 46 of theTRIPS Agreement).
In regard to counterfeit trademark goods, the simple removal of the trademark unlawfully
affixed is not sufficient for Japanese customs au thorities to permit release of the goods into the
channels of commerce in Japan.
[Follow-up question from the EC]
What is the legal basis pursuant to which the removal of a trademark unlawfully affixed
is not sufficient for Japanese customs authorities to permit the release of the goods concernedinto the channels of commerce in Japan?
Based on Article 21 of the Customs Tariff Law, the Directors-General of Customs are to take
appropriate measures to ensure that illegal marks wi ll not be attached to the goods again in Japan.  As
a result, the simple removal of trademarks unlawfully  affixed is not sufficient for Japanese Customs
authorities to permit the releas e of the goods concerned into the channel of commerce in Japan.
6. In what circumstances would an official be held personally liable to appropriate remedial
measures for actions taken in the administration of any law pertaining to the protection orenforcement of intellectual property rights?  Would a public authority be liable to appropriate
remedial measures in circumstances other than the illegal ex ercise of public power, e.g. where
                                                     
5 Document IP/N/6/JPN/1.IP/Q4/JPN/1
Page 5
an official has acted negligently?  If so, please explain the conditions and the legal basis for such
liability (Article 48 of the TRIPS Agreement).
With regard to the liability to be held by the State or a public entity, Article 1 of the State
Redress Law provides that the State or a public entity shall be liable for compensation to damages anofficial illegally incurred to others knowingly or by negligence in the course of exercising hisauthority.
In addition, Supreme court precedents have established that liability for compensation to
victims shall be held by the State, not by an official in person where he incurred damages to othersknowingly or by negligence in the course of exercising his authority.
7. Are there specific rules in Japanese law aimed at preventing, as a provisional measure
against infringement, the entry into the channels of commerce of imported goods immediatelyafter customs clearance?  In the absence of such rules, please explain how such entry isprevented in practice (Article 50.1 of the TRIPS Agreement).
A Japanese court has the authority to issue a provisional order under the Code of Civil
Preservative Procedure to preserve the right of injunction (Article 100 of the Patent Law, Article 112of the Copyright Law and the like) of the right holder of the intellectual property upon request of theapplicant.  Please refer to Japan's responses to questions 10 and 11 of the Checklist of Issues on
Enforcement in this respect.
6
[Follow-up question from the EC]
Japan's responses to questions 10 and 11 of the Checklist of Issues on Enforcement6
describe, in general terms, the availability of provisional measures through Japanese courts.
Could the Government of Japan please describe how in practice a court would seek to prevent,by way of provisional measure, the entry into  the channels of commerce of imported goods
immediately after customs clearance and set out what, if any, specific provisions exist inJapanese law in this respect?
A court issues a provisional order, on the request of the right holder of the intellectual
property rights, prohibiting transfer, etc. of the infringing articles with an aim to preserving the right
of injunction based on the intellectual property rights (cf. Article 100 of the Patent Law, Article 112of the Copyright Law).
These provisional measures are taken based on the Code of Civil Preservative Procedure
which provides for general provisional measures relating to civil cases, and no specific provisionsregarding articles infringing intellectual property rights exist.
8. Could the Government of Japan please clarify when a notice of an order for a
preliminary injunction inaudita altera parte must be served on the parties affected and what thelegal basis is for this requirement (Article 50.4 of the TRIPS Agreement).
Article 17 of the Code of Civil Preservative Procedure provides that a preservative order shall
be served to interested parties.  Furthermore, court rulings do not go into effect until they have beennotified to interested parties under Article 204(1) of the Code of Civil Procedure and preservativeorder under the Code of Civil Preservative Procedure is one such "ruling".
                                                     
6 Document IP/N/6/JPN/1.IP/Q4/JPN/1
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Therefore, when a preservative order of provisional injunction is issued, such an order is to
be served immediately.
9. Please explain the procedure and the legal basis pursuant to which a provisional measure
to preserve relevant evidence in regard to an alleged infringement, as referred to inArticle 50.1(b) of the TRIPS Agreement, shall, at the request of the defendant, be revoked orotherwise cease to have effect, if proceedings leading to a decision on the merits of the case arenot initiated within a reasonable period (Article 50.6 of the TRIPS Agreement).
When a preservative order under the Code of Civil Preservative Procedure has been issued, a
court shall fix a certain reasonable period and order an applicant, upon request of a defendant:
(a) to bring a lawsuit on the merits and to present a written document proving such a fact;
or
(b) where a lawsuit on the mer its has already been brought, to present a written document
proving such a fact, within such prescribed period.  In this context, unless theapplicant presents the written document within such prescribed period, a defendantmay request to revoke the preservative order to the court. (Article 37(1)(3) of theCode of Civil Preservative Procedure).  Please refer to Japan's response toquestion 12 of the Checklist of Issues on Enforcement
7 for the general procedure on
preservative orders.
10. Could the Government of Japan please clarify whether there exists any period within
which customs authorities should inform a right holder who has lodged an application for thesuspension of release by customs authorities of infringing goods, in cases they have accepted the
application and, if so, what is the legal basis for this obligation (Article 52 of the TRIPSAgreement)?
Although there does not exist any provision on "reasonable time", the customs authorities
make notification to right holders as expeditiously as possible.
11. Is there a requirement under Japanese law that the importer and the applicant shall be
promptly notified of the suspension of the relea se of goods pursuant to Article 51 of the TRIPS
Agreement and, if so, what is the legal basis?  Please explain (Article 54 of the TRIPSAgreement).
In cases where the customs au thorities believe that there ar e any goods that correspond to
goods which infringe on intellectual property rights, the customs authorities shall suspend such goodsand take the identification procedure to identify whether they correspond to goods which infringeintellectual property rights or not.  In this situation, the customs authorities shall notify the importerand the right holder to the effect that they suspend the goods and take the identification procedure.(Article 21(4) of the Customs Tariff Law)
[Follow-up question from the EC]
What, if any, is the period within which the customs authorities are obliged to notify the
importer and the applicant?
                                                     
7 Document IP/N/6/JPN/1.IP/Q4/JPN/1
Page 7
Although there does not exist any provision on the period within which the customs
authorities are obliged to notify the importer and the applicant, notifications are made as expeditiouslyas possible.
12. Please explain the procedure and the legal basis pursuant to which Japan has
implemented Article 55 of the TRIPS Agreement.
In Japan, "the competent authorities" stipulated in Article 55 of the TRIPS Agreement mean
the customs author ities, and th e customs authoritie s themselves initiate the proceedings leading to a
decision on the merits of the case when they suspend goods. Therefore, there is no possibility that thecustoms authorities are not informed of such initiation, and Article 55 of the TRIPS Agreement is notapplicable to Japanese case.  The Directors-General of Customs shall give the right holder and theimporter an opportunity to present evidence or to express opinions about the infringement of thegoods. (Article 61 ter(1) of the Cabinet Order for Enforcement of the Customs Tariff Law)
[Follow-up question from the EC]
Is it the case that only the customs authorities, and not the right holder, may bring
proceedings on the merits where suspension measures have been taken?
The proceedings leading to a decision on the merits of the case stipulated in Article 55 of the
TRIPS Agreement are conducted by the customs author ities in Japan, and the proceedings are referred
to as "identification procedure" in Article 21 paragraph 4 of the Customs Tariff Law.  The paragraphstipulates that in case where th e customs authorities believe that there are any goods that correspond to
goods which infringe on intellectual property rights, the customs authorities shall suspend such goodsand take the identification procedure to identify whether they correspond to goods which infringe onintellectual property rights or not.
13. Please explain which measures are available in Japanese law to ensure that any
inspection of goods detained by customs authorities pursuant to Section 21 bis, §4 of the Japanese
Customs Tariff Law is without prejudice to the protection of confidential information (Article 57of the TRIPS Agreement).
Government officials in Japan including customs officers have an obligation to keep secrets,
whereby they must not disclose secrets they know through their official duty.  Customs officers shallbe present at the inspection site of suspicious goods and thus confidential information is carefullyprotected.
[Follow-up question from the EC]
What is the legal basis pursuant to which government officials have an obligation not to
disclose confidential information?  Please describe the scope and implementation of thisobligation.  Would only government officials be present at the inspection site?
According to Article 100(1) of the National Public Service Law, government officials shall
not disclose confidential information which they obtained in the capacity of their duties and thisobligation shall be applied even after they leave their duties.  Any person who discloses confidential
information against this obligation shall be liable to imprisonment with labour not exceeding one year
or to a fine not exceeding ¥30 000 under Article 109(xii) of the said Law.IP/Q4/JPN/1
Page 8
When inspections of suspicious goods are conducted by the applicant, customs officials shall,
and possibly the importer would, be present at the inspection site and the customs officials ensure thatspecific information concerning the suspicious goods would not be known by the applicant.
14. Article 58 of the TRIPS Agreem ent lays down the conditions that need to be fulfilled
where competent authorities act upon their own initiative in suspending the release of allegedlyinfringing goods.  With regard to this "ex officio action" please clarify the following issues:
- Is there a requirement under Japanese law that the importer and the applicant
shall be promptly notified of the suspen sion of the release of goods pursuant to
Article 58(b) of the TRIPS Agreement and, if so, what is the legal basis?  Pleaseexplain.
- Please explain the procedure and the legal basis pursuant to which Japan has
implemented Article 55 of the TRIPS Agreement in conjunction withArticle 58(b) of the TRIPS Agreement.
- In what circumstances would an official be held personally liable to appropriate
remedial measures for actions taken in the administration of any law pertainingto the protection or enforcement of intellectual property rights?  Would a publicauthority be liable to appropriate remedial measures in circumstances other thanthe illegal exercise of public power, e.g. where an offici al has acted negligently?
If so, please explain the conditions and the legal basis for such liability(Article 58(c) of the TRIPS Agreement).
In cases where the customs au thorities believe that there ar e any goods that correspond to
goods which infringe on the right to which the application is not applicable (i.e. patent rights, utilitymodel rights, industrial design ri ghts or circuit layout rights) and the customs authoritie s conduct
ex officio action, the customs authorities shall take the identification procedure.
The identification procedure in ex officio action is stipulated in the same provision and in the
same manner as that for the application under Article 52 of the TRIPS Agreement (see the reply toquestion 12).
The State Redress Law of Japan stipulates that the State has an obligation to pay reparation
when officials illegally damage the other parties knowingly or by negligence (see the reply to
question 6).
15. In ordering the type of remedies described in Article 59 of the TRIPS Agreement, will a
Japanese court take into account the need for proportionality between the seriousness of the
infringement and the remedies ordered as well as the interests of third parties?  Please explainhow and on what legal basis this is done.
In cases where the customs authorities confiscat e and destroy the goods which infringe
intellectual property rights, th e customs authorities consider the proportionality between the
seriousness of the infringement and the remedies or dered as well as the property right of the importer,
and may admit voluntary disposal by the importer.   (Article 21(2) of the Customs Tariff Law)
16. Please explain the procedure and the legal basis pursuant to which counterfeit trademark
goods shall not be allowed to be re-exported in an unaltered state or be subjected to a differentIP/Q4/JPN/1
Page 9
customs procedure, other than in exceptional circumstances (Article 59 of the TRIPS
Agreement).
In order to re-export the goods which are identified to be goods which infringe a trademark
right as a result of the identification procedure, the importer shall obtain approval of exportation inaccordance with the Article 2 of the Cabinet Order of Control of Exportation. As such, goods shallnot be able to obtain approval of re-exportation in an unaltered state even if they apply it, there is nopossibility that th e goods are to be re-exported in an unaltere d state.  Furthermore, there is no way to
subject them to a different customs procedures (Article 2 of the Cabinet Order of Control of
Exportation, Appendix 2-45).
[Follow-up question from the EC]
Could the Government please explain the legal basis pursuant to which it is not possible
to obtain approval for re-exportation of infringing goods in unaltered state?
Notification on application of the Cabinet Order of Control of Exportation specifies in the
note that goods which are recognized as infringing trademark rights as a result of the identificationprocedure (Article 2 of the Cabinet Order of C ontrol of Exportation, Appendix 2-45) shall not be
granted approval for exportation in principle, subject to exceptional cases where the re-exportation isapproved based on the TRIPS Agreement.
17. Are imports of a non-commercial nature excluded from the application of the border
measures set out in Part III, Section 4 of th e TRIPS Agreement, as implemented by the Japanese
Customs Tariff Law, irrespective of the number of goods involved and their manner ofimportation (Article 60 of the TRIPS Agreement)?
The border enforcement applies only to the goods imported on a commercial basis, and thus
does not apply to small quantities of goods of non-co mmercial nature carried by passengers or sent in
small consignment for personal use.
[Follow-up question from the EC]
What is the legal basis pursuant to which, in order to qualify as an import of a non-
commercial nature, goods should be imported in small quantities, carried by passengers or sentin small consignments?
It cannot be supposed that the goods of a non-commercial nature would not be imported in
small quantities, carried by passengers nor sent in small consignments.
18. With regard to cases that involve the infringement of intellectual property, could the
Government of Japan provide data on the number of:
- law suits that have been filed including their respective outcome and the average
length from the filing of a complaint until the final judgement;
- injunctions that have been issued (as defined in Article 44 of the TRIPS
Agreement) and explain how such injunctions are being enforced;IP/Q4/JPN/1
Page 10
- provisional measures (as defined in Article 50 of the TRIPS Agreement) that
have been granted and the average length to obtain such measures (from therequest);
According to the Annual Report of Judicial Statistics for 1996, the number of civil
lawsuits on intellectual property rights which completed the first instance at district courts was431, in 112 of which the judgements were rendered.  Among those 112 cases, the courtadmitted the plaintiffs' claims in 56 cases (which includes thr ee "default judgements" rendered
by reason of the defendants' non-appearance at the oral proceedings), rejected the plaintiffs'claims in 53 cases, and dismissed three lawsuits as illegal.
The number of civil lawsuits on intellectual property rights which completed the
"Koso appeal" (first appeal) instances at high courts were 87, in 57 of which the judgements
were rendered.  Among those 57 cases, the court dismissed the appeal in 50 cases, revokedthe first judgement and rendered its own judgement in seven cases.
The number of civil lawsuits on intellectual property rights which completed the
"Jokoku  appeal" (second appeal) instance at the Supreme Court were 20 cases, in all of which
cases the court dismissed the Jokoku  appeal.
There are no available statistical data of the details of the claims in the lawsuits,
e.g. compensation of the damages or injunctions.
According to the Annual Report, the actual duration of proceedings of civil lawsuits
on intellectual property rights at each instance is as follows:
- Among 431 district court cases as first instance, eight were completed within one
month, 18 within two months, 28 within three months, 43 within six months, 63
within one year, 121 within two years, 78 with in three years, 28 within four years, 18
within five years, and 26 over five years.
- Among 87 high court cases as Koso appeal instance, two were completed within one
month, four within three months, five within six months, 35 within one year, 27
within two years, 11 within three years, two within four years, and one within fiveyears.
- Among 20 Supreme Court cases as Jokoku  appeal instance, one was completed within
three months, one within six months, one within one year, eight within two years,
four within three years, and five within five years.
No other available statistical data than the above-mentioned ones on lawsuits related
to intellectual property rights, e.g. the average length from the filing of a complaint to thefinal judgement, the number of issued injunctions, the number of granted provisionalmeasures, and the average length to obtain provisional measures, etc., can be found.
Please refer to Japan's responses to questions 8 and 13 of the Checklist of Issues on
Enforcement
8 which show statistical data on civil cases in general (the number of lawsuits,
pendency period for lawsuit, and pendency period for provisional measures, etc., in district
court).
                                                     
8 Document IP/N/6/JPN/1 .IP/Q4/JPN/1
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- suspensions at the border of counterfeit trademark/pirated copyright goods or in
relation to goods where other intellectual property rights are infringed;
Import suspension cases by rights
91 92 93 94 95 96
P a t e n t 214994Utility Model 7 2 18 52 29 22Design 35 77 117 196 194 107Trademark 1154 618 390 445 1114 3240Copyright 76 64 123 125 73 113Total 1274 762 652 827 1419 3486
Notes:
1. The table does not include suspensions related to personal effects.
2. Declarations that cover plural rights are counted as plural.
- criminal cases including the sentences that have been applied;  whether they have
been executed;  and please also explain what kind of infringement of anintellectual property right would be regarded as a violation of criminal law;
According to the Annual Report of Judicial Statistics, the number of persons,
including legal entities, involved in criminal cases is as follows:
1992 first instance: copyright 22, trademark 24
                       appeal ( Koso): none
second appeal ( Jokoku ):  copyright 1
1993 first instance: copyright 21, patent 6, trademark 34
appeal ( Koso):  copyright 2, trademark 6
second appeal ( Jokoku ):  trademark 4
1994 first instance:  copyright 17, trademark  23
appeal ( Koso):  copyright 4, trademark 2
second appeal ( Jokoku ):  trademark 2
1995 first instance:  copyright 17, ind. design 2, trademark 32
appeal ( Koso):  none
second appeal ( Jokoku ):  copyright 2
1996 first instance:  copyright 13, trademark 47
appeal ( Koso):  trademark 5
second appeal ( Jokoku ):  noneIP/Q4/JPN/1
Page 12
While Criminal Law itself does not specify infringement of intellectual property
rights, crimes and penalties are stipulated in the legislation of each intellectual property right
as follows.
(1) Patent, Utility Model, Design, Trademark
Any person who has worked a patented invention without authority,
or undertaken an act which is deemed to be an infringement according toArticle 101 of the Japanese Patent Law, shall be automatically liable to acriminal penalty according to Article 196 of the Japanese Patent Law.
The same is stipulated for utility models, deigns, trademarks in
Article 56 of the Japanese Utility Model Law, Article 69 of the JapaneseDesign law, and Article 78 of the Japanese Trademark Law respectively.
"Working" of an invention, device, design, and "Using" of
trademark is stipulated in paragraph 3 of Article 2 of the Japanese PatentLaw, paragraph 3 of Article 2 of the Japanese Utility Model Law,paragraph 3 of Article 2 of the Japanese Design Law, and paragraph 3 ofArticle 2 of the Japanese Trademark Law respectively (see the reference).The acts deemed to be infringements for patents, utility models, designs,trademarks are stipulated in Article 101 of the Japanese Patent Law,Article 28 of the Japanese Utility Model Law, Article 38 of the JapaneseDesign Law, and Articles 37 and 67 of the Japanese Trademark Lawrespectively (see the reference below).
References
Patent
"Working" of an invention in the Japanese Patent Law means the
following acts:
(a) in the case of an invention of a product, acts of manufacturing, using,
assigning, leasing, importing or offering for assignment or leaseincluding displaying for the purpose of assignment or lease(hereinafter the same) of, the product;
(b) in the case of an invention of a process, acts of using the process;
(c) in the case of an invention of a process of manufacturing a product,
acts of using, assigning, leasing, importing or offering forassignment or lease of, the product manufactured by the process, inaddition to the acts mentioned in the preceding paragraph.
Acts deemed to be infringements of a patent right in the Japanese
Patent Law mean the following acts:
(a) in the case of a patent for an invention of a product, acts of
manufacturing, assigning, leasing, importing or offering forIP/Q4/JPN/1
Page 13
assignment or lease of, in the course of trade, articles to be used
exclusively for the manufacture of the product;
(b) in the case of a patent for an invention of a process, acts of
manufacturing, assigning, leasing, importing or offering forassignment or lease of, in the course of trade, articles to be usedexclusively for the working of such invention.
Utility Model
"Working" of a device in the Japanese Utility Model Law means acts
of manufacturing, using, assigning, leasing, importing or offering forassignment or lease (including displaying for the purpose of assignment orlease - hereinafter the same) of, articles embodying the device.
Acts deemed to be infringements of a design right in the Japanese
Utility Model Law mean the following acts:
- Acts of manufacturing, assigning, leasing, importing or offering for
assignment or lease of, in the course of trade, articles to be usedexclusively for the manufacture of the article covered by theregistered utility model shall be deemed to be an infringement ofthe utility model right or exclusive licence.
Design
"Working" of a design in the Japanese Design Law means any act of
manufacturing, using, assigning, leasing, importing or offering forassignment or lease (including displaying for the purpose of assignment orlease - hereinafter the same) of, articles to which the design has been applied.
Acts deemed to be infringements of a design right in the Japanese
Patent Law mean the following acts:
- Acts of manufacturing, assigning, leasing, importing or offering for
assignment or lease of, in the course of trade, things to be usedexclusively for the manufacture of the article to which the registereddesign or a design similar thereto has been applied shall be deemed tobe an infringement of the design right or exclusive licence.
Trademark
"Use" with respect to a mark in the Japanese Trademark Law means
any of the following acts:
(a) acts of applying the mark on the goods or their packaging;(b) acts of assigning, delivering, displaying for the purpose of
assignment or delivery, or importing, the goods on which or on the
packaging of which a mark has been applied;IP/Q4/JPN/1
Page 14
(c) acts of applying mark to articles for use by persons to whom the
services are provided (including articles assigned or leased -hereinafter the same) when providing services;
(d) acts of providing services by use of articles to which a mark has been
applied for use by persons to whom the services are provided whenproviding services;
(e) acts of displaying, for the purpose of providing services, articles to
which a mark has been applied and supplied for use in the provisionof services (including articles for use by persons to whom theservices are provided when providing services - hereinafter thesame);
(f) acts of applying a mark to articles related to the provision of such
services belonging to persons to whom the services are providedwhen providing services;
(g) acts of displaying or distributing advertisements relating to the goods
or services, price lists or business papers with respect to the goods orarticles on which a mark has been applied.
Acts deemed to be infringements of a trademark right in the Japanese
Trademark Law mean the following acts:
(a) use of a trademark similar to the registered trademark in respect of
the designated goods or designated services, or use of the registeredtrademark or of trademark simila r thereto in respect of goods or
services similar to the designated goods or designated services;
(b) acts of holding, for the purpose of assignment or delivery, designated
goods, or goods which are similar to the designated goods ordesignated services and to which or on the packaging of which theregistered trademark or a trademark similar thereto has been applied;
(c) acts of holding or importing articles which are for use by persons to
whom the services are provided and to which the registeredtrademark or a trademark similar thereto has been applied, in theprovision of the designated services, or of services similar to thedesignated services or designated goods, for the purpose of usingsuch articles in the provision of such services;
(d) acts of assigning or delivering articles which are for use by persons
to whom the services are provided and to which the registeredtrademark or a trademark similar thereto has been applied, in theprovision of the designated services, or services similar to thedesignated services or designated goods, for the purpose of causingsuch articles to be used in the provision of such services, or acts of
holding or importing such articles for the purpose of assigning or
delivering them;IP/Q4/JPN/1
Page 15
(e) acts of holding articles bearing a reproduction of the registered
trademark or a trademark similar thereto for the purpose of usingsuch trademark in respect of the designated goods or designatedservices or of goods or services similar thereto;
(f) acts of assigning or delivering, or of holding, for the purpose of
assignment or delivery, articles bearing a reproduction of theregistered trademark or a trademark similar thereto, for  the purposeof causing such trademark to be used in respect of the designatedgoods or designated services or of goods or services similar thereto;
(g) acts of manufacturing or importing articles bearing a reproduction of
the registered trademark or a trademark similar thereto for thepurpose of using such trademark, or causing it to be used, in respectof the designated goods or designated services or of goods or servicessimilar thereto;
(h) acts of manufacturing, assigning, delivering or importing, in the
course of trade, articles to be used exclusively for manufacturinggoods bearing a reproduction of the registered trademark or a similartrademark.
The following acts shall be deemed to be an infringement of the
principal trademark right or a right of exclusive use:
(a) use of a registered defensive mark in respect of the designated goods
or designated services;
(b) acts of holding, for the purpose of assignment or delivery, the
designated goods on which or on the packaging of which theregistered defensive mark has been applied;
(c) acts of holding or importing articles which are for use by persons to
whom the services are provided and to which the registereddefensive mark has been applied, in the provision of the designatedservices, for the purpose of using such articles in the provision ofsuch services;
(d) acts of assigning or delivering articles which are for use by persons
to whom the services are provided and to which the registereddefensive mark has been applied, in the provision of the designatedservices, for the purpose of causing such articles to be used in theprovision of such service, or acts of holding or importing sucharticles for the purpose of assigning or delivering them;
(e) acts of holding goods bearing a reproduction of the registered
defensive mark for the purpose of using such a mark in respect of thedesignated goods or designated services;
(f) acts of assigning or delivering, or of holding for the purpose of
assignment or delivery, goods bearing a reproduction of theIP/Q4/JPN/1
Page 16
registered defensive mark, for the purpose of causing such defensive
mark to be used in respect of the designated goods or designatedservices;
(g) acts of manufacturing or importing goods bearing a reproduction of
the registered defensive mark for the purpose of using such defensivemark, or causing it to be used, in respect of the designated goods ordesignated services.
(2) The Layout of a Semiconductor Integrated Circuit
Article 51 of the Act Concerning the Layout of a Semiconductor
Integrated Circuit provides that any person who infringes on a layout right ora sole use right shall be punished by penal servitude not exceeding three yearsor a fine not exceeding ¥1 000 000.
Furthermore, any person who has obtained registration for
establishment by fraud shall be punished by penal servitude not exceeding oneyear or a fine not exceeding ¥300 000 (Article 52).
(3) Unfair Competition Prevention Law
Article 13 of the Japanese Unfair Competition Prevention Law
provides that any person who falls under any of the following items shall besentenced to imprisonment for a term not exceeding three years or fined anamount not exceeding ¥3 000 000:
(a) a person who commits, for an unfair purpose, any act of unfair
competition described in Article 2(1)(I) or (X);
(b) a person (excluding a person described in the preceding item) who
indicates a falsehood on goods or for service, or in an advertisementor in a document or correspondence used for a transaction, which islikely to cause misleadi ng, with respect to th e place of or igin, quality,
contents, manufacturing me thod, use or qua ntity of such  goods or the
quality, contents, use or quantity of such service;
(c) a person who violates any provision of Article 9 or Article 10.
Furthermore, in the case where a representative of a juridical person or an
agent, servant or other employee of a juridical person or a natural person hascommitted, in connection with the business of such juridical or natural person, any of
the violations descri bed in the preceding article, in addition to the violator being
penalized, such a juridical person shall be fined an amount not exceeding¥100 000 000 and such a natural person shall be liable to the same fine described inthe preceding article (Article 14).
(4) Copyright
According to the Copyright Law, cr imes and pe nalties are stipulated as
follows:IP/Q4/JPN/1
Page 17
(a) The following shall be punishable by imprisonment for a term not 
exceeding three years or a fine not exceeding ¥3 000 000:
(i) any person who infringes moral rights, copyright, right of 
publication or neighbouring rights;
(ii) any person who, for profit- making purposes, causes others to
use automatic reproducing machines for such reproduction ofworks or performances, etc. as constitutes an infringement oncopyright, right of publication or neighbouring rights(Article 119).
(b) Any person who violates the provision of Article 60 (protection of 
moral interests after the author's death) shall be punishable by a fine not exceeding ¥3 000 000 (Article 120).
(c) Any person who distributes copies of works on which the true name 
or generally known pseudonym of a non-author is indicated as the name of the author (including copies of derivative works on which the true name or generally known pseudonym of a non-author of the original works is indicated as the name of the original author) shall bepunishable by imprisonment for a term not exceeding one year or a fine not exceeding ¥1 000 000 (Article 121).
(d) Any person who violates the provisions of Article 48 or Article 
102(2) (indication of sources) shall be punishable by a fine not exceeding ¥3 000 000 (Article 122).
- seizures and/or destruction of counterfeit trademark and pirated copyright
goods.
The number of seizures of counterfeit trademark and pirated copyright goods are as
follows.  (The available number of destructions cannot be found.)
counterfeit trademark     pirated copyright
1992:          50 291 47 017
1993:        116 212 41 4351994:          63 814 84 8871995:        125 951 60 8971996:        155 784 73 116
- how the compensation for damages of th e infringement of intellectual property
rights is calculated (Article 45.1 of the TRIPS Agreement);
In deciding damages incurred by infringement of intellectual property rights, a court
considers the veracity of arguments of parties on damages, taking whole purport of oralarguments as well as the results of the investigation of evidence into account (Article 185 of
Code of Civil Procedure).IP/Q4/JPN/1
Page 18
Furthermore, under the Patent and Copyright Law, etc., presumptive measures for
damages is available as the case may be (Article 102 of the Patent Law, Article 114 of the
Copyright Law, etc.).  Please refer to Japan's response to question 5 of the Checklist of Issues
on Enforcement 9 in this respect.
- what would be regarded as "expenses of the right holder" which have to be
reimbursed pursuant to Article 45.2, first half of the first sentence, of the TRIPSAgreement and how they would be calculated;
- whether attorney's fees can be reimbursed and how such fees would be
calculated;
"Expenses for lawsuit" should be borne in principle by the losing party under
Article 89 of Code of Civil Procedure.  Accord ing to Article 2 of the Law concerning Costs of
Civil Procedure, these "expenses for lawsuit" include filing fees, travel fees for the parties to
come on the date of oral argument, and expenses necessary for investigation of evidence liketravel fees for witness, but do not include attorney's fees.
- whether Article 45.2, second sentence, of the TRIPS Agreement has been
implemented in Japan and how such "damages" would be calculated?
In Japan there are no provisions regarding intellectual property rights which authorize
the judicial authorities to order recovery of profits or payment of pre-established damages
even where the infringer, unknowingly and without reasonable grounds to know, engaged in
infringing activity.
III. REPLIES TO QUESTIONS POSED BY HONG KONG, CHINA
Questions posed to several Members
Civil and administrative procedures and remedies
1. Is it correct to say that intellectual property infringement cases often end in the interim
interlocutory stage?  If yes, what seem to be the reasons?  Is this desirable in the interest ofjustice?
Article 136 of the Code of Civil Procedure provides that a court may attempt to carry out a
settlement at any stage of the suit.  Rationale of this provision is that  disputes in ci vil cases should not
necessarily be resolved by a decision, rather solution by satisfactorily compromising with each othermight be desirable for some cases.
The Annual Report of Judicial Statistics for 1996 shows that out of 431 cases related to
intellectual property rights which had been concluded at district courts nationwide in 1996, 224 caseshad been concluded thr ough settlement.  Although reasons why th e parties had reac hed settlement in
intellectual property cases are unclear, settlement is generally valued as an effective alternative disputeresolution based on each party's agreement.
2. In civil proceedings, are there any proof facilitation provisions which could create legal
presumptions of intellectual property subsistenc e and ownership and thus could excuse the right
owner from appearing in court and to testify these issues?  If not, why?
                                                     
9 Document IP/N/6/JPN/1 .IP/Q4/JPN/1
Page 19
The provisions in question do not exist in the Japanese Patent Law, the Utility Model Law,
the Design Law, the Trademark Law, the Act Concerning the Layout of a Semiconductor IntegratedCircuit, or the Japanese Unfair Competition Prevention Law.
There is no need for any proof facilitation provisions which could create legal presumptions of
intellectual property subsistence and ownership, because Articles 66 and 98 of the Japanese PatentLaw provides that establishments, transfers, and extinguishments of a patent right shall be of no effectunless they are registered, and the same is stipulated for utility models, designs, trademarks andcircuit layout rights.
Under the Japanese Unfair Co mpetition Prevention Law, the te rm "undisclosed information
(trade secret)" shall mean technical or business information useful in commercial activities, such asmanufacturing or marketing methods, which is kept secret and not publicly known in this law(Article 2(4)). The subsistence and ownership of undisclosed information are judged at the courtaccording this article.
Provisions in the Japanese Copyright Law relating to legal presumptions of intellectual
property subsistence and ownership are listed as follows:
- A person, whose true name or well-known pseudonym is indicated in an ordinary
manner as the author's name on his original work or when his work is offered to ormade available to the public, shall be presumed to be the author of the work(Article 14).
- Where a contract for the transfer of copyright makes no particular reference to the
rights mentioned in Article 27 (right of translation, adaptation, etc.) and Article 28(right of the original author in the exploitation of a derivative work), these rights shallbe presumed to be reserved to the transferor (Article 61(2)).
- A person whose true name has been registered shall be presumed to be the author of
the work concerned (Article 75(3)).
Under these presumptive provisions, a right shall be considered as being existent unless the
opposite party proves facts contradictory to such existence.  In the case where the opposite party weresuccessful in disproof, the right holder must prove existence of the right.  In addition, presumptiveprovisions do not exempt the parties from appearing in court.
Criminal procedures
3. Does any intellectual property enforcement agency have the legal power to seize and
forfeit suspected infringing articles, whether or not a charge has been laid?  If not, why?
The police have the legal power to seize and forfeit suspected infringing articles, whether or
not a charge has been laid, in the light of the principle of enforcement activities based on a warrantissued by judicial authorities (Articles 33 and 35 of the Constitution of Japan).
4. Is there a specialized criminal intellectual property enforcement agency?  If not, what is
the rationale?IP/Q4/JPN/1
Page 20
There is no specialized criminal intellectual property enforcement agency in the police,
because sections in charge of community safety police matters in each prefectural police or policestation nationwide are charged with intellectual property enforcement within their normal duty.
5. In criminal proceedings, are there any pr oof facilitation provisi ons which could create
legal presumptions of intellectual property subs istence and ownership and thus could excuse the
right owner from appearing in court and to testify these issues?  If not, why?
The answer is the same as the answer to question 2, for criminal proceedings.Concerning undisclosed information, the provisions in question do not exist in the Japanese
Unfair Competition Prevention Law because no penal provision applie s to the unfair acts concerning
undisclosed information.
Question posed to Japan only
Is parallel importation of articles infringing intellectual property rights (especially
copyright) a criminal offence?  If yes, please quote the relevant legislation or hallmark cases.
Under the Japanese Copyright Law, importation into this country, for distribution, of objects
made by an act which would c onstitute an infringement on mo ral rights, copyr ight, right of
publication or neighbouring rights if they were made in this country at the time of such importationshall be deemed to constitute an  infringement (Article 113) a nd might be a criminal offence
(Article 119).  These provisions are applicable to parallel imports.
In addition, importation of arti cles infringing industrial prope rty rights constitutes a criminal
offence to be penalized in Japan (Articles 2(3)(i), 68 and 196 of the Patent Law;  Articles 2(3), 16 and56 of the Utility Model Law;  Articles 2(3), 23 and 69 of the Industrial Design Law;  Articles 2(3)(ii),
25 and 78 of the Trademark Law).
IV. REPLIES TO QUESTIONS POSED BY SWITZERLAND
1. Please explain whether international treaties which contain detailed provisions addressed
to the (judicial) authorities and not to the State itself are considered as self-executing in yoursystem?  If not, when there is a divergence between the intellectual property legislation/practicesand the international agreement in your country, does the latter automatically prevail?  If not,please explain the means allowing your country to fulfil the international obligations?  Please citethe relevant texts or jurisprudence.
Whether a treaty is self-executing, that is, directly applied in the national legal system and
referred to in the domestic courts, should in genera l be judged in the light of the intention of the
parties as well as the clarity of the provisions of the treaty.  Therefore, such an issue needs to beconsidered on a case by case basis, rather than solely based on the fact that the treaty in questioncontains provisions addressed to the judicial authorities.
As the Constitution of Japan stipulates that the treaties concluded by Japan and established
laws of nations shall be faithfully observed (Article 98(2)), it is understood that the treaties and otherforms of international law have the legal effect in the national legal system and that the treaties towhich Japan is a party prevail over the domestic laws.  In intellectual property fields, such laws as theCopyright Law (Article 5), Patent Law (Article 26), U tility Model La w (Article 2 quinquies  (4)),IP/Q4/JPN/1
Page 21
Industrial Design Law (Article 68(4)) and the Tr ademark Law (Article 77(4)) contain provisions
confirming that the treaties are given priority to these laws.
2. Article 55 of the TRIPS Agreement provides that "... in appropriate cases, this time-limit
[of ten days] may be extended by another ten working days".  Is such time extension foreseen inyour laws?  If yes, please cite the relevant provisions.  If not, please explain how an applicantcan avail himself of this possibility as provided by the TRIPS Agreement?
In Japan, "the competent aut horities" stipulated in Secti on 4 of Part III of the TRIPS
Agreement mean the customs authorities, and the customs authorities themselves initiate theproceedings leading to a decision on the merits of the case when they suspend goods.  Therefore,there is no possibility that the customs authorities are not informed of such initiation, and thisprovision is not applicable under Japanese laws.
V. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
General obligations
1. Please describe briefly the procedure that must be followed by a foreign party to initiate
an enforcement procedure in each of the courts and administrative bodies identified in Japan'sresponse to question 1 of the Checklist of Issues on Enforcement
10 and cite the legal authorities
establishing those procedures.
A lawsuit shall be brought by f iling a complaint in which the parties, legal representative,
object of the claim and the cause are entered with the court (Articles 223, 224 of the Code of CivilProcedure). In addition to that filing fee is required (Article 228 of the Code of Civil Procedure).
As for the control procedure by the administration authorities, any right holders may request
the customs authorities to suspend the importation of  the goods which infringe on their trademark right
or copyright by l odging an application written in  Japanese with the customs authorities.  In  case of the
goods which infringe on patent right, utility model right, design right or circuit layout right, any rightholder may submit a document written in Japanese to the customs authorities, which provides with thecustoms authorities information for facilitating their ex officio action (Article 21 bis of the Customs
Tariff Law).
2. Please identify any requirement that a foreign party must meet to initiate a proceeding in
the courts and administrative bodies identified in answer to question 1 that is not required of anational or resident of Japan and cite the legal authorities providing for those differences.
Requirements for bringing a lawsuit as stated in answer to question 1 are the same whether
the parties are Japanese or foreigners.
The right holder who is able to lodge an application with the customs authorities or submit a
document which provides with the customs authorities information is not limited to Japanese orresident of Japan.
3. Articles 41.1 and 48 of the TRIPS Agreement require establishment of safeguards
against abuse of judicial and administrative enforcement procedures, including provision foradequate compensation for injury suffered because of such abuse.  Please describe the meansavailable under the law of Japan to prevent abuse of judicial and administrative procedures or                                                     
10 Document IP/N/6/JPN/1.IP/Q4/JPN/1
Page 22
to remedy damages suffered as a result of such abuse and cite the legal authorities for those
means.
In Japan, it is understood that the defendant can file for damages against the plaintiff when the
lawsuit brought by the plaintiff is deemed illegal based on wilfulness or negligence under Article 709of the Civil Code.
4. Please explain any provisions in the enforcement system in Japan that ensure expeditious
remedies.  In addition, please explain what provisions are available to prevent deliberate delaysby the parties to a proceeding and indicate th e circumstances in whic h such provisions will be
applied.
Although a time-limit for finalizing a lawsuit is not specified in the Law, the provision
authorizing a presiding judge to set the date of or al argument ex officio (Article 152(1)(2) of the Code
of Civil Procedure) etc., may ensure expeditious remedies.
Furthermore, a court may reject, upon request or ex officio, offensive or defensive means
which the parties have presented out of time knowingly or by gross negligence before the court whensuch an act might cause delay of the conclusion of the case (Article 139(1) of the Code of CivilProcedure).
The Director-General of Customs conducts the identification procedure on the goods which
are suspected to infringe intell ectual property rights, and there is  no possibility  that such goods are
permitted to be imported except when they are identified as goods which does not infringe on
intellectual property rights or the right holder permits the importation of the goods.  When the goodsare identified as ones which infringe on intellectual property rights, the Director-General of Customsmay confiscate and destroy them or order re-exportation of the goods to the importer.  Theidentification procedure should be concluded within one month, as a benchmark, from  the initiation of
the identification procedure, and if this procedur e is not finished within one month, the customs
authorities shall notify the importer the reason why.
5. Article 41.3 of the TRIPS Agreement requires that decisions on the merits of a case
preferably be in writing, the better to determine the reasoning on which the decision is based.Please state whether judges or administrative officials must render their decisions in writing andcite the legal authorities requiring such written opinions.
A court shall describe a decision, facts, issues, and reasons, etc. in writing at rendering a
judgement (Article 191(1) of the Code of Civil Procedure).
When the customs authorities identify that the goods  infringe or do not in fringe on intellectual
property rights, the customs authorities send a document which notify of the importer and the rightholder the result of the identification procedure (Article 21(6) of the Customs Tariff Law).
6. Article 41.3 also requires that decisions on the merits of a case be based only on evidence
in respect of which parties had an opportunity to  be heard.  Please explain what factors may be
considered by a judge or administrative official in rendering a decision and cite the legalauthorities establishing the basis on which judges and administrative officials may reachdecisions.IP/Q4/JPN/1
Page 23
A court shall consider veracity of arguments of parties on facts, taking whole purport of oral
arguments (a procedure both parties are entitled to be heard by the court) as well as results of theinvestigation of evidences into account (Ar ticle 185 of the Code of Civil Procedure).
Article 61 ter(2) of the Cabinet Order for Enforcement of the Customs Tariff Law stipulates
that when the customs authorities use submitted eviden ces for the foundation of the identification, they
shall give the right holder and the importer an opportunity to express opinions about such evidences.
7. Article 41.4 obligates WTO Members to provide for judicial review of certain judicial
and administrative decisions in intellectual property enforcement proceedings.  Please describewhat legal limitations, if any, are placed upon the ability of a party to an intellectual propertyenforcement proceeding to have both procedural rulings and final decisions reviewed by aseparate judicial authority, and cite the legal authorities providing for such reviews.
A decision rendered by a summary court or a district court as a first instance may be appealed
to a higher court (Article 360 of the Code of Civil Procedure).  A decision of an appellate court mayfurther be appealed by reason of contradiction of the Constitution or of the law clearly affecting thedecision (Article 394 of the Code of Civil Procedure).  Please refer to Japan's response to question 1of the Checklist of Issues on Enforcement
11 for appellate court in specific cases.
Civil and administrative procedures and remedies
8. Article 42 requires that defendants be notified of enforcement proceedings brought
against them.  Please describe the procedures followed by courts for notifying defending partiesregarding proceedings that have been initiated against them, indicate the information providedregarding the proceeding and cite the legal authorities establishing these procedures.
When a lawsuit has been filed the complaint (see the reply to question 1) shall be served to a
defendant by a court (Article 229 of the Code of Civil Procedure).
9. Under Article 42, parties are to be entitled to substantiate claims and present relevant
evidence.  Please describe any limitations under the law of Japan on a party’s ability tosubstantiate a claim or to present relevant evidence and cite the legal authority providing suchlimitations.
Parties are, in principle, entitled to present offensive or defensive means before a court until
closing of oral arguments (Article 137 of the Code of  Civil Procedure).  Exceptions to this principle
include offensive or defensive means presented out of time knowingly or by negligence (seeArticle 139(1) of the Code of Civil Procedure as referred to in the reply to question 4.
10. Article 42 requires, with one narrow exception, that there be a means to identify and
protect confidential information during intellectual property enforcement proceedings.  InIP/N/6/JPN/1, Japan states that "there are no circumstances under which confidentialinformation may be required to be produced" and therefor protection for confidentialinformation is assured.  In many cases, however, parties must provide financial information, forexample, to show the extent of harm or mu st provide technical information to prove the
existence of a trade secret.  Such information must be protected in accordance with Article 42.Please describe the means provided under the law of Japan for parties to identify such
information and have it protected.
                                                     
11 Document IP/N/6/JPN/1.IP/Q4/JPN/1
Page 24
Japan's response to question 4 of the Checklist of Issues on Enforcement12 as referred to in
this question explains that no parties are forced to produce document containing confidentialinformation "against their will".
With regard to "financial information to show the extent of harm" or "technical information to
prove the existence of a trade secret", there are no specific provisions to protect secrecy contained inbusiness or professional information presented by the parties before the court in the course oflitigation under the current Code of Civil Procedure.   It is because the Constitution of Japan (Article
82) strictly prescribes the exceptions to the principle of openness of the court procedure.  As a result,court proceedings should be conducted before the court open to the public even though business orprofessional information are disclosed.  This constitutes an exception as provided for by "unless thiswould be contrary to existing constitutional requirements" in Article 42 of the TRIPS Agreement.
Provisions on trade secrets in the Code of Civil Procedure as recently amended are as follows
for information.
In Japan a legislation amending the current Code of Civil Procedure entirely has been enacted
in June 1996 and promulgated.  (However the new Code of Civil Procedure is to go into effect asfrom the date prescribed by Government Ordinance,  which is within two years from the promulgation
and the new Code has not yet entered into force as of October 1997.)  In the new Code of CivilProcedure a provision to restrict the inspection of lawsuits records has been created so as to protecttrade secrets recorded in lawsuits records by preventing them from being leaked through inspection.
11. Article 43.1 of the TRIPS Agreement requires that judicial officials be able to order a
party to an intellectual property enforcement proceeding to produce relevant evidence in thatparty’s control identified by the opposing party when the latter party has presented reasonablyavailable evidence in support of its claims.  In  IP/N/6/JPN/1, Japan states that parties may
refuse to produce documents that a judge has ordered them to produce if such party has"legitimate reasons".  Please describe what are considered "legitimate reasons".
Under Article 335 of the Code of Civil Procedure, as referred to in Japan's response to
question 3 of the Checklist of Issues on Enforcement,
12 a court has, upon request of the party, the
authority to order the opposite party to present object in order for the court to inspect as long as theopposite party has no legitimat e reasons to refuse.  "Inspection of  the object" here is not documentary
evidence but evidential material in the form of recognition obtained by a judge through inspectingcharacteristics of objects or phenomena, etc.
There are no established precedents of the Supreme Court considering the meaning "legitimate
reasons of refusal" in Article 335 of the Code of Civil Procedure.  It is theoretically understood thatsuch cases as where the inspection might threaten the party or near relatives to be prosecuted orpunished, or where confidential information obtained through the job of the party (public or private)or technical or business secret of the party may be leaked, constitute "legitimate reasons of refusal".
                                                     
12 Document IP/N/6/JPN/1.IP/Q4/JPN/1
Page 25
12. Article 44.1 requires that judicial officials be able to enjoin or otherwise prevent
infringing activity by a party, including by preventing the entry of infringing goods into thechannels of commerce in their jurisdiction.  In IP/N/6/JPN/1, Japan identifies provisions forinjunctions in connection with patents, trademarks, industrial designs, copyrights, andintegrated circuit layout-designs.  Please describe authority of the judges to order parties to stopviolations of rights in undisclosed informat ion and to prevent goods resulting from such
violations from entering the channels of commerce, citing the relevant legal authorities.
The judgements to prevent or suspend the unfair acts concerning undisclosed information are
made by court decision when requirement under Ar ticle 3 of the Japane se Unfair Competition
Prevention Law is met.
13. Article 44.2 provides an exception to the requirement in paragraph 1 for government use
or use by third parties authorized by the government, limiting the remedy for infringement topayment of adequate remuneration as provided in Article 31(h).  Please describe any suchlimitations on remedies in the laws of Japan and cite the legal authorities providing for thoselimitations.
Japan does not recognize the government use or use by third parties authorized by the
government.  In Japanese legislation, there is no stipulation limiting the remedy for infringement topayment of adequate remuneration as provided in Article 31(h) nor legal authorities providing forthose limitations.
14. Article 45.1 requires that judicial officials be able to order an infringer to pay the right
holder damages adequate to compensate for the injury caused by the infringement.  InIP/N/6/JPN/1, Japan identifies provisions for damages in connection with patents, trademarks,industrial designs, copyrights, and integrated circuit layout designs.  Please describe theauthority of the judges to order parties to comp ensate for violations of rights in undisclosed
information and to prevent goods resulting from such violations from entering the channels ofcommerce, citing the relevant legal authorities. Please explain the factors considered inestablishing the amount of the compensation and cite the legal authorities authorizing such
compensation orders.
The judgements to compensate for damages which result from the unfair acts concerning
undisclosed information are made by court decision when requirement under Article 4 of the JapaneseUnfair Competition Prevention Law is met.
As referred to in the answer to question 6, a court shall consider the veracity of arguments of
parties on facts, taking whole purport of oral arguments (a procedure both parties are entitled to beheard by the court) as well as results of the investigation of evidences into account (Article 185 of theCode of Civil Procedure).
Article 709 of the Civil Code provides for compen sation for damages in general, and Article 5
of the Unfair Competition Prevention Law provide s for presumption of the amount of damages.
15. Article 45.2 requires that judges be authorized to order payment of a right holder's
expenses, including legal fees.  In IP/N/6/JPN/1, Japan states that court costs are borne by the
losing party.  Please describe the factors considered in establishing such costs, indicate whether
lawyers’ fees are included, and cite the legal authorities authorizing such payments.IP/Q4/JPN/1
Page 26
"Expenses for lawsuit" to be borne by the losing party under Article 89 of the Code of Civil
Procedure include filing fees, travel fees for the parties to come on the date of oral argument, andexpenses necessary for investigation of evidence like travel fees for witness, but do not includeattorney's fees, according to Article 2 of the Law concerning Costs of Civil Procedure.
[Follow-up question from the US]
In answer to question 15, the Government of Japan states that expenses for lawsuit are
to be borne by the losing party but that attorney's fees are not included in those expensesaccording to Article 2 of the Law concerning Costs of Civil Procedures.  Please explain how thisexception complies with the obligations of Article 45.2.
Under the TRIPS Agreement, Members may decide whether expenses the infringer is ordered
to pay the right holder by the judicial authorities should include appropriate attorney's fees, which isclearly understood by the text "which may include appropriate attorney's fees" in Article 45.2.
In addition, it is understood by case law in Japan that victims of illegal activities are entitled to
obtain reasonable amounts of attorney's fees as damages which have reasonable causality with suchillegal activities.  Therefore when the intellectual property rights are infringed, the right holder mayclaim for damages includi ng reasonable amounts of attorney's fees based on liabilities of illegal
activities.
16. Article 46 requires that judges officials be authorized to order, in certain circumstances,
other remedies, including disposal of goods outside commercial channels or destruction of goodsand destruction of materials and implements the predominant use of which is the creation ofinfringing goods.  In IP/N/6/JPN/1, Japan id entifies provisions for such other remedies in
connection with patents, trademarks, industrial designs, copyrights, and integrated circuitlayout designs.  Please describe authority of the judges to order such remedies in connection withviolations of rights in undisclosed informat ion and to prevent goods resulting from such
violations from entering the channels of commerce, citing the relevant legal authorities. Pleaseexplain the factors considered in establishing the amount of the compensation and cite the legalauthorities authorizing such compensation orders.
The Japanese Unfair Competition Prevention Law provides that a person whose business
interests are infringed or are likely to be infringed by unfair competition, is entitled to request thedestruction of the objects which constitute the act of infringement (including objects created by the actof infringement) or any other acts necessary to prevent or suspend the infringement (Article 3(2)).The judgements to order such remedies are made by court decision when requirement under thisarticle is met.
As referred to in the answer to question 6, a court shall consider the veracity of arguments of
parties on facts, taking whole purport of oral arguments (a procedure both parties are entitled to beheard by the court) as well as results of the investigation of evidences into account (Article 185 of theCode of Civil Procedure).
Article 709 of the Civil Code provides for compensation for damages in general, and Article 5
of the Unfair Competition Prevention Law provide s for presumption of the amount of damages.
17. Article 48.2 permits WTO Members to exempt public authorities and officials from
liability from remedies only where their actions were taken or intended in good faith in carryingout their responsibilit ies under the law.  Please explain any exemption provided publicIP/Q4/JPN/1
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authorities and officials from liability for abuse of enforcement procedures, describe the
circumstances in which such limitations would not apply, and cite the legal authorities grantingsuch exemptions.
With regard to the liability to be held by the State or a public entity, Article 1 of the State
Redress Law provides that the State or a public entity shall be liable for compensation for damages anofficial illegally incurred to others knowingly or by negligence in the course of exercising hisauthority.  In other words, the State or a public entity does not assume liability for damages unless anofficial conducts his duty with wilfulness or negligence.
In addition, Supreme Court precedents have established that liability for compensation to
victims shall be held by the State, not by an official in person where he incurred damages to othersknowingly or by negligence in the course of exercising his authority.
Provisional measures
18. Article 50.2 requires that judicial authorities be authorized to grant provisional remedies
when a delay is likely to cause "irreparable harm" to the right holder.  Please describe brieflywhat is required by the authorities to establish "irreparable harm" to the right holder.
See the reply to question 19.
19. Article 50.2 also requires that judicial authorities be authorized to grant provisional
remedies when there is a "demonstrable risk of evidence being destroyed".  Please describebriefly what factors are considered by the competent authorities in determining when there is a"demonstrable risk of evidence being destroyed".
As to civil provisional measures, the Code of Civil Preservative Procedure provides for
"provisional orders regarding objects concerned" and "provisional orders deciding a provisionalstatus" as provisional measures which courts may order.
"Provisional orders regarding objects concerned" may be issued where a court concludes that
an applicant would be unable to exercise, or would come to face extreme difficulties in exercising, hisright due to any change in the situation of the objects concerned (Article 23(1) of the Code of CivilPreservative Procedure).
"Provisional orders deciding a provisional status" may be issued where a court concludes that
such an order is necessary to avoid extreme damage or imminent danger which an applicant wouldsuffer regarding the legal relations at issue (Article 23(2) of the Code of Civil PreservativeProcedure).
A provisional order the court issues to prohibit the disposal of articles infringing intellectual
property rights has an effect to preserve evidence relating to the infringement.
Please refer to Japan's responses to questions 10 and 11 of the Checklist of Issues on
Enforcement
13 with regard to provisional measures based on the Code of Civil Preservative
Procedure.
                                                     
13 Document IP/N/6/JPN/1.IP/Q4/JPN/1
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20. Article 50.3 requires that judicial authorities be authorized to require an applicant to
provide evidence to establish with a sufficient deg ree of certainty that the applicant is the right
holder and that infringement has occurred or is imminent.  With respect to each intellectualproperty right, please describe the evidence required by right holders to establish ownership.
When the parties request a provisional order, they must preliminarily prove the rights or
relations thereof to be preserved (Article 13 of the Code of Civil Preservative Procedure)."Preliminary proof ( Somei )" is done by presenting such evidence as making the judge find the alleged
facts presumable, which is a lower degree of proof than required at hearing on the merits.
Evidence the parties present, as a preliminary proof, to identify the right holder of intellectual
property rights depends on cases and therefore it is impossible to categorize what suffices to be suchevidence.
21. Article 50.3 requires that judicial authorities be authorized to provide a security or
equivalent assurance to protect the defendant.  Do judges in Japan have such authority andunder what circumstances do they exercise it?
Under the Code of Civil Preservative Procedure, a court is authorized to require an applicant
to provide a security or not when it issues the preservative order (Article 14 of the Code of CivilPreservative Procedure).
Although no statistical numbers are available with regard to cases requiring a security or not,
generally speaking, it seems rare for the court to issue a preservative order without requiring asecurity to the applicant.
22. Article 50.4 requires that parties be notified when provisional measures have been
adopted inaudita altera parte.  Please describe briefly the procedures followed for notifyingaffected parties and state the time within which such notice must take place.
Article 17 of the Code of Civil Preservative Procedure provides that a preservative order shall
be served to interested parties.  Furthermore, court rulings do not go into effect until they have beennotified to interested parties under Article 204 (1) of the Code of Civil Procedure and a preservativeorder under the Code of Civil Preservative Procedure is one such "ruling".
Therefore when a preservative order of provisional injunction is issued, such an order is to be
served immediately.
23. Article 50.4 also requires that defendants be afforded a review process to determine
whether provisional measures should be modified, confirmed, or revoked.  Please describebriefly the procedures a defendant must follow to initiate review proceedings and identify theperiod within which such proceedings must be initiated.
The defendant may raise an objection against the preservative order the court has issued.
(Article 26 of the Code of Civil Preservative Procedure).  There are no specific time-limits to raisesuch an objection.
In addition, upon request from the defendant, the court issuing the order shall fix a certain
reasonable period and require the applicant to file the case on the merits and to produce the evidence
in writing thereof or, when the case on the merits has already filed, to produce the evidence in writingto prove the pendency, within such period.  In case the applicant fails to provide such evidencesIP/Q4/JPN/1
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within the required period, the defendant may request the court to annul the order (Article 37(1)(3) of
the Code of Civil Preservative Procedure).  There is no specific time-limit to file such a request.Please refer to Japan's response to question 12 of the Checklist of Issues on Enforcement.
14
24. Article 50.6 provides that if proceedings leading to a decision on the merits are notinitiated within a reasonable time, provisional remedies granted by competent authorities shallbe revoked or otherwise cease to have effect, at the request of the defendant.  Please identify therelevant provisions in the law of Japan authorizing the revocation or cessation of provisionalmeasures if review proceedings are not initiated within a reasonable time and specify whatconstitutes a "reasonable time period" to initiate proceedings.
As referred to in the reply to question 23, in Japan "reasonable time period" as provided for
in Article 50.6 of the TRIPS Agreement is set by the court taking various factors into due accountunder Article 37 of the Code of Civil Preservative Procedure.
Special requirements related to border measures
25. Please explain whether procedures, permissible under Article 51 of the TRIPS
Agreement, are available to stop the export of goods suspected of infringing copyrights and/ortrademarks.
The application procedure to the customs aut horities is not applied to exportation of the goods
which infringe on intellectual property rights.
On the other hand, according to Export Trade Control Order, any person who intends to
export goods which are included among the following goods designated by Minister of InternationalTrade and Industry, must obtain the approval of the Minister of International Trade and Industry bysecuring an export license in accordance with the procedures set forth by the Ministry of InternationalTrade and Industry Ordinance on exports.
(a) Goods which infringe on the patent rights, utility model rights, design rights and trade
mark rights and/or copyrights in the country that is the final destination.
(b) Goods which incorrectly identify the place of origin.For this reason, in case that these goods reach customs without having obtained an export
license, the export permit shall not be given in accordance with Article 70 of the Customs Law.Furthermore, there are no past records of Japane se authorities having aut horized exports of items
recognized as being infringing articles.
26. Article 52 of the TRIPS Agreement requires that rights holders wishing to stop
importation of counterfeit trademarked goods or pirated copyrighted works present evidence tothe competent authorities that there is prima facie  infringement of their trademark or copyright.
Please explain what evidence will constitute prima facie  infringement in Japan.
The applicant shall fill in application form with description of their rights (trademark,
copyright or neighbouring right), names of the cargo which he/she consider to infringe on intellectualproperty rights, reasons why he/she consider so, and other items determined relevant.
(Article 61 quater  of the Cabinet Order for Enforcement of the Customs Tariff Law)
                                                     
14 Document IP/N/6/JPN/1.IP/Q4/JPN/1
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27. Article 52 requires that the competent authorities notify the right holder that his
application is accepted within a reasonable time.  Please explain within what period of time thecompetent authority responds to a request for suspension of release of goods and, if the
application is accepted, the length of time  during which enforcement action will be taken.
Although there does not exist any provision on "reasonable time", the customs authorities
make notification to right holders as expeditiously  as possible. The maximum period within which the
enforcement action is taken are two years, and it may be extended.
28. Article 53.2 provides that the owner, importer, or consignee of goods involving industrial
designs, patents, layout-designs or undisclosed information that have been suspended by customsauthorities should be able, in certain circumstances, to have such goods released on payment ofsecurity sufficient to protect the right holder from infringement.  Please identify what forms ofintellectual property, if any, are subject to provisions of Article 53.2 and cite to the relevantprovisions of law or regulations.
For patent right, utility model right, design right or circuit layout right, there does not exist
application procedure pursuant to Article 53.2 of the TRIPS Agreement in Japan.  Thus, this Article isnot applicable.
29. Article 60 permits Members to exclude from the provisions for border enforcement small
quantities of goods of a non-commercial nature carried by passengers or sent in smallconsignments.  Please describe what constitutes a de minimis import that is excluded from theborder measures under the law of Japan.
The border enforcement applies only to the goods imported on the commercial basis, and thus
does not apply to small quantities of goods of non-commercial nature carried by passengers or sent insmall consignment for personal use.
Criminal procedures
30. Article 61 requires that criminal penalties be sufficient to provide a deterrent at least for
wilful trademark counterfeiting and copyright piracy.  Please explain how the penalties providedunder the laws of Japan comply with that obligation.
With regard to Article 61 of the TRIPS Agreement, the Japanese Trademark Law sets forth in
Article 78 criminal penalty regulations concerning trademark infringement.  In the case that theinfringer is an employee, servant or agent of a corporate body, penalties must be paid not only by theinfringer but also by the corporate body (Article 78 of the Japanese Trademark Law), moreover, thecorporate body has to pay a high penalty beyond that paid by the natural person (not exceeding¥150 000 000) (Article 82 of the Japanese Trademark Law).  These above serves as a deterrent to theorganized trademark right infringement of the whole corporate body.
With regard to copyright, the following acts would be regarded as a violation of criminal law
under the Copyright Law.
(a) The following shall be punishable by imprisonment for a term not exceeding three
years or a fine not exceeding ¥3 000 000:
(i) any person who infringes moral rights, copyright, right of publication or
neighbouring rights;IP/Q4/JPN/1
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(ii) any person who, for profit-making purposes, causes others to use automatic
reproducing machines for such reproduction of works or performances, etc.as constitutes an infr ingement on copyr ight, right of  publication or
neighbouring rights (Article 119).
(b) Any person who violates the provision of Article 60 (protection of moral interests
after the author's death) shall be punishable by a fine not exceeding  ¥3 000 000
(Article 120).
(c) Any person who distributes copies of works on which the true name or generally
known pseudonym of a non-author is indicated as the name of the author (includingcopies of derivative works on which the true name or generally known pseudonym ofa non-author of the original works is indicated as the name of the original author)shall be punishable by imprisonment for a term not exceeding one year or a fine notexceeding ¥1000 000 (Article 121).
(d) Any person who violates the provisions of Article 48 or Article 102(2) (indication of
source) shall be punishable by a fine not exceeding ¥3 000 000 (Article 122).
[Follow-up questions from the US]1. Please provide statistical information related to civil copyright, trademark, geographical
indications, industrial designs, patents, integrated circuit layout-designs, and trade secretenforcement for each of the years 1996 and 1997,  including the number of cases filed;injunctions issued;  infringing products seized;  infringing equipment seized;  cases resolved(including settlement);  and th e amount of damages awarded.
(a) The number of cases filed regarding intellectual property rights in 1996:
District Court:  589
High Court:  84
Supreme Court:  16
(b) The number of cases resolved (settlement in parentheses) in 1996:
District Court: 431 (224); among 431, patent 91, utility model 52, industrial
design 23, trademark 61, copyright 62, unfair competition 133, others 9.
High Court: 87 (18); among 87, patent 16, utility model 5, industrial design 3,
trademark 14, copyright 14, unfair competition 32, others 3.
Supreme Court: 20 (0).
Data on the other items as listed in the question are not available to the knowledge of the
Japanese Government.
2. Please provide statistical information related to criminal enforcement in the area of
copyright piracy and trademark infringement for each of the years 1996 and 1997, including the
number of raids, prosecutions, convictions, and the amount of fines and/or jail terms (including
whether the fines were paid and whether the jail term was actually served or was suspended)and any other information establishing that your criminal system operates effectively to detercopyright piracy and trademark counterfeiting.IP/Q4/JPN/1
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(a) The number of raids in 1996:
copyright piracy: 348, trademark infringement: 517;
(b) The number of prosecutions in 1996:
copyright piracy: 121, trademark infringement: 238;
(c) The number of convicted persons (including legal entity) in 1996:
District Court: copyright piracy: 13, trademark infringement: 46,
High Court: copyright piracy: 0, trademark infringement: 5;
(d) The amount of fines (convicted persons in parentheses) in 1996:
District Court: copyright piracy: more than ¥1 000 000 (1); trademark
infringement: more than ¥1 000 000 (5), more than ¥500 000 (1), more than ¥300 000 (1);
(e) The jail terms (convicted persons in parentheses) in 1996:
District Court: copyright piracy: more than two years with suspension (1), 
more than one year with suspension (10), more than six months with suspension (1);
Trademark infringement: more than two years with suspension (1), more than
one year (1); with suspension (21), more than six months (1); with suspension(14), less than six months (1);
High Court: trademark infringement: more than six months with suspension 
(1).
Data on the other items as listed in the question are not available to the knowledge of the
Japanese Government.
The provisions in the Copyright Law leading to deter effectively copyright piracy in addition
to those listed in the answer to question 30 are as follows:
Article 113
"1. The following acts shall be considered to constitute infringements on moral rights,
copyright, right of publication or neighbouring rights:
(i) the importation into this country, for distribution, of objects made by an act 
which would constitute an infringement on moral right s, copyright, right of 
publication or neighbouring rights if they were made in this country at the time of such importation.
(ii) The distribution or the possession for distribution of objects made by an act 
infringing moral rights, copyright, right of publication or neighbouring rights IP/Q4/JPN/1
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(including those imported as mentioned in the preceding item) by a person 
who is aware of such infringement.
"2. In the conduct of business, an act of using on a computer copies made by an act
infringing copyright in a program work, including copies made by the owner of suchcopies if and to the extent deemed necessary for the purpose of exploiting that workon a computer by himself as well as copies of a program work imported as mentionedin item (i) of the preceding paragraph and copies made by the owner of such importedcopies if and to the extent above-mentione d, shall be consider ed to constitute an
infringement on that copyright, so long as a person using such copies is aware of suchinfringement at the time when he has acquired an authority to use these copies.
"3. An act of exploitation of a work prejudicial to the honour or reputation of the author
shall be considered to constitute an infringement on his moral rights."
Article 124
"1. Where a representative of a legal person (including an administrator of a non-juridical
association or foundation) or an agent, an employee or any other worker of a legalperson or a person violates the provisions of Articles 119 to 122 in connection withthe business of such legal person or such person, a fine of each said Article shall beimposed upon such legal person or such pers on in addition to the punishment of the
offender.
"2. In the case where the provision of the preceding paragraph applies to a non-juridical
association or foundation, its representative or administrator of a non-juridicalassociation or foundation, shall represent such association or foundation with regardto proceedings, and the provisions of the Code of Criminal Procedure which areapplicable when a legal person is the accused or the suspect shall apply mutatis
mutandis.
"3. In the case of paragraph (1), a complaint lodged against an offender or the withdrawal
of such complaint shall be effective also with respect to the legal person or the personconcerned, and a complaint lodged against a legal person or a person or thewithdrawal of such complaint shall be effective also with respect to the offenderconcerned."
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