WORLD TRADE
ORGANIZATIONIP/Q/ALB/1
IP/Q2/ALB/1
IP/Q3/ALB/1
IP/Q4/ALB/1
28 April 2003
(03-2229)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
ALBANIA1
The present document reproduces the introductory statement made by the delegation of
Albania, the questions put to it and the responses given in connection with the review of legislation
undertaken at the Council's meeting of 18-22 June 2001.2
_______________
I. INTRODUCTORY STATEMENT
It is my great honour to address today this important Council, on Albania's intellectual
property issues.  In September 2000, Albania wa s declared a Member of the World Trade
Organization (WTO).  Its membership of the WTO is a milestone in its history.
In the framework of this membership and the respect of agreements, principles and rules of
the WTO, Albania already is working to strengthen it s own structures of technical rules, of standards,
of protection of the intellectual property rights, of the procedures of public procurement, all economic
and financial measures affecting trade, etc.
Intensifying the economic reforms for broader opened markets, Albania is working to move
rapidly towards the trade integration in order to create a stable, transparent and non-discriminatory
environment for trade and private sector development.  Also, Albania is involved in the efforts to
implement more forcefully macroeconomic stabilization and structural reform programs to firmly
place the economy onto sustainable growth path.
The target of the Albanian Government in the field of intellectual property is to ensure an
effective and satisfactory protection of all categories of intellectual property rights.  Since the
beginning of the democratic process in Albania, the government started to think about these rights
which did not exist at all before.  After the entering into force of the Agreement on Trade-Related
Aspects of Intellectual Property Rights, Albania, which had already applied to become contractingparty of the GATT since 1992, has been undertaking many measures in order to bring in line the
recent national legislation in this field with the requirements of this Agreement.
Actually, apart from the main laws dealing direc tly with intellectual property rights such as
the law on Industrial Property and Copyright Law, th e Albanian policy on intellectual property rights
is defined in the Constitution, Article 58 of which provides for the liberty of the artistic creations and
                                                     
1 As regards laws and regulations notified by Albania under Article 63.2 of the Agreement, reference is
made to documents IP/N/1/ALB/1, IP/N/1/ALB/C/1 and Add.1, IP/N/1/ALB/E/1, IP/N/1/ALB/I/1,IP/N/1/ALB/L/1, IP/N/1/ALB/V/1, and IP/N/6/ALB/1.
2 The minutes of this meeting have been circulated as document IP/C/M/32.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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scientific researches and guarantees their use, and the moral and economic rights of the authors, as
well.  The whole system of the legislation in force (Civil and Criminal Codes, Civil and Criminal
Procedure Codes, the Customs Code etc.) contributes in different ways to the achievement of this
constitutional right. Also, the international agreements related to intellectual property rights, to whichAlbania is a party, constitute an important element of this system.  The adherence of Albania to the
Convention Establishing the World Intellectual Property Organization in 1992 was the first one;  but it
was soon followed by other adherences such as the adhering to the Paris Convention for the
Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic
Works, the Madrid Agreement Concerning the International Registration of Marks, the Patent
Co-operation Treaty, the Extension Agreement between EPO and Albanian Patent Office, the Rome
Convention for the Protection of Performers, Producers of Phonograms and BroadcastingOrganizations.  Within this month, Albania will b ecome member of the Geneva Convention for the
Protection of the Producers of Phonograms against Unauthorized Duplication of their Phonograms.
Albanian Parliament has already approved the law for the accession of Albania to the WIPO
Performers and Phonograms Treaty, which is submitted in WIPO on May 2001, and also the WIPO
Copyright Treaty is nearing completion.
The Ministry of Culture, Youth and Sports and the General Directorate of Patents and
Trademarks, which is attached and is under the jurisdiction of the Council of Ministers, are
responsible for the policymaking in the field of intellectual property.  Other ministries, institutions or
non-governmental organizations participate in the development and the implementation of the Statepolicy on intellectual property;  whereas the protection of these rights is carried out through court
regulations.  Also, within the Ministry of Economic Cooperation and Trade, The Albanian Secretariat
to the WTO represents the coordinating institutional structure.  Having studied attentively all the
Agreements of the Uruguay Round and acting in  close cooperation with experts of Albanian
institutions, with the WTO Negotiating Group, and with the Accessions Division in the WTO, thisSecretariat contributed a lot to the improvement of our laws, bringing them in compliance with the
relevant Agreements.  Recently, the Secretariat has been notified as a contact point in the Council for
TRIPS according to Article 69 of the TRIPS Agreement.
During the long process of the negotiations for the accession of Albania to the WTO, our
main laws dealing with intellectual property rights have been given many changes and supplements in
order to increase the level of the protection, to  improve delays and procedures for examinations,
registration etc., to apply the retroactive effect of the law and to put them in full compliance with
TRIPS Agreement in the matter of non-discrimination between nationals and foreigners. Copyright
Law (1992) has been followed by three amendments, whereas the Law on Industrial Property by one
amendment and already there is a new law "On the protection of Topographies of Integrated Circuits",
approved in 1999.  Some more provisions are provided aiming at a further enforcement of intellectualproperty rights. For these purposes, changes have been done to Copyright Law and to the Law on the
Industrial Property as well as to the Penal Code as recently amended by the Law 7883 dated
24 January 2001 and to the Customs Code with its Implementing Provisions, where paragraphs
118-120 expressly deal with enforcement on intellectual property rights.
In the near future we have planned to work in three main directions:
- To improve continuously the legislation especially concerning the administrative
procedures for granting certificates and enforcement of intellectual property rights
drafting new laws on industrial property and copyright, including not only theimprovements already made, but also articles and provisions dealing with intellectual
property issues existing already in Civil Procedures Code and Penal Code;
- Strengthening the functions of Albanian institutions involved in the protection of
intellectual property rights. We have already initiated preparations for nationalIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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seminar with experts from Patent and Trademark Office, customs, judges and
prosecutors. These seminars are planned to be organized in cooperation with WIPO,
WTO and EPO;
- Increase the awareness of potential users of the intellectual property system
throughout the country and stimulate inventive and innovative activities.
II. RESPONSES TO QUESTIONS POSED BY CANADA
1. What recourse do right holders have in respect of wilful trademark counterfeiting or
copyright piracy on a commercial scale, as required by Article 61 of the TRIPS Agreement and
throughout?
Article 83 of the "Law on Industrial Property" (1 994) provides the right to the owner of a
trademark.  According to this article:
The owner of a registered mark shall have the right to prevent a third party from using,
without his authorization, in the course of trade, as a mark or as a trade name, an identical or similar
sign for goods or services which are identical or similar to those in respect of which the mark is
registered , where such use would result in a likelihood of confusion. Where the use relates to anidentical sign for identical goods or services, the likelihood of confusion shall be assumed.
The owner of a registered mark shall have the right to prevent a third party from using,
without authorization, in the course of trade as a ma rk or as a trade name, an identical or similar sign
for goods or services which are neither identical nor similar to those in respect of which the mark isregistered, where the mark has become highly reputed and the use is detrimental to the distinctive
character or reputation of the mark.
Notwithstanding paragraph 1 of this Article, the owner of the registered mark shall not have
the right referred to in that paragraph in respect of goods which have been put in the territory of theRepublic of Albania or in any other territory determined in an bilateral or multilateral agreement of
the Republic of Albania, by the owner of registered  mark, or with his consent, provided that neither
the goods nor the manner in which the mark is applied to the goods are altered.
The holder of a trademark which is considered to be well-known in the Republic of Albania,
even if it is not registered under this Law, shall have the right to prevent third parties from using in
commerce without his authorization, any sign which constitutes a reproduction, an imitation or atranslation of the trademark.  The concept of a well-known trademark shall be established by the
Patent and Trademark Office.
Right holders of trademarks enjoy the option provided under articles 89 and 101 of the "Law
on Industrial Property" (1994) and articles 11 and 19 of the Law "Some changes and supplements on
the 'Law on Industrial Property'" (1999) in compliance with article 61 of the TRIPS Agreement.
According to these Articles:
The owner of the registered mark shall have th e right to institute proceedings in the Court
against any person who has infringed or is infringing his rights under the conditions of Article 83 of
the Law.  The owner shall have the same right against any person who has performed acts or is
performing acts, which make it likely that such infringement will occur (imminent infringement).IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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If the owner of the registered mark proves that an infringement has been committed or is
being committed, the Court shall award compensation. In these compensations will be included the
profit of the person who has performed the infringe ment, the damage which has incurred the owner of
the mark except the one is included in the profit of the breaker and the expenses including the lawcosts.  The Court shall grant an injunction to prevent further infringement and any other remedy
provided in the general law.
If the owner of the registered mark proves imminent infringement, the Court shall grant an
injunction to prevent further infringement and any other remedy provided in this Law and in the Code
of Civil Procedure.
In addition to the measures specified in the previous paragraphs, the Court may re-establish
the situation that existed before the infringement and to stop infringing actions, to proceed with an
effective seizure of the goods and, when necessary, to destroy illegally used marks, tools that could be
used to manufacture the goods and the goods themselves in absence of possibility to remove any
illegally mark from such goods.
The judicial authorities shall have the authority to order prompt and effective provisional
measures:
- to prevent an infringement of any intellectual property right from occurring and in
particular to prevent the entry into channels of commerce in their jurisdiction of
goods, including imported goods immediately after customs clearance;
- to preserve relevant evidence in regard to the alleged infringement.
The new Article 89/3 of the Law on Industrial Property states :
In addition to the measures specified in paragraph 2(a) of this Article, the Court may
re-establish the situation that existed before th e infringement and to stop infringing actions, to
proceed with an effective seizure of the goods and, when necessary, to destroy illegally used marks,
tools that could  be used to manufacture the goods and the goods themselves in absence of possibility
to remove any illegally mark from such goods.
Any natural or legal person who performs an act which he knows constitutes an infringement
of the patent, mark or design shall commit an offence and shall be punishable from the Court by a
fine between lek 20,000 and 100,000.
Article 50 of Copyright Law as amended by the Law No. 8594 dated 6 April 2000 underlines
that the translation, adaptation, sound or visual recording, reproduction, the transmission of an artistic
work without the authorization of its author, which conflicts with the provisions of this law or the
international conventions ratified by the Republic of Albania, when the author's moral and economic
rights have been infringed, constitutes a criminal work and is penalized by fine or imprisonment up toone year.
Whereas the Penal Code, as amended by the Law 7883 dated 24 January 2001, under
Articles 147-149 underlines fines and imprisonment by up to four years for misappropriation of
property through fraudulence by introducing a work of art and culture as the original or by changingthe authenticity of the authorship; and fines and imprisonment by up to two years for partially or
completely plagiarizing somebody else's work or for unauthorized reproduction of somebody's work.
According to Article 82.4 of the Customs Code, the customs authorities upon request of the
holder of a trademark or patent of production or other neighbouring rights specified in theIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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Implementing Provisions of this Code, may prohibit their release in free circulation, the exportation,
the re-exportation and their placing, under the suspensive procedure of the goods that are recognized
to be counterfeited or pirated goods, according to the procedure provided for in the Implementing
Provisions of this Code.
And the Implementing Provisions on Customs C ode, Article 120/1, states that the General
Directorate of Customs may suspend the release of the goods or seize the goods depending on the
situation.
The Code of Civil Procedure authorizes judges to order the payment of monetary damages
adequate to compensate for the injury done.  Article 68 of this Code states: "When a sum of money ora removable thing is requested the value is determined on the basis of the amount indicated or of the
value declared by the plaintiff.  In the absence of indication or of declaration, it is accepted that the
determination of the value is a competence of the court".
And any person has the right to claim compensation of costs and damages caused by the
infringer. Under Article 106 it is stated among others: "In its final decision, the court charges the party
whose lawsuit has been dropped, to pay the judicial expenses in conforming with article 102 of this
Code including, the payment for one advocate."
Article 67 of the Law on Competition authorizes courts to impose fines not less than
lek 10,000 and not more than lek 200,000 to any person or company who does not respect business
secrets.
2. What protection does your Copyright legislation afford to "foreign works"?
Article 51 of the Copyright Law as changed by the Law No. 7564 dated 19 May 1992
stipulates that the provisions of this law shall apply not only to works the author of which has
Albanian citizenship or lives permanently in the Republic of Albania, regardless of the country where
they were published for the first time, but also to works published for the first time in Albania or in a
country that is a member of an international Copyright treaty or convention to which Albania is also a
signatory as well as to works published for the first time in a country that is not a member of an
international Copyright treaty or convention, to which Albania is a signatory, when the works arepublished simultaneously in the territory of this country and in the Republic of Albania or in another
country which is a signatory to the international Copyright treaty or convention.
III. RESPONSES TO QUESTIONS POSED BY THE EUROPEAN COMMUNITIES AND
THEIR MEMBER STATES
G
ENERAL PROVISIONS
1. Please describe if your legislation includes measures necessary to protect public health
and nutrition, and to promote the public interest in sectors of vital importance to your socio-
economic and technological development as mentioned under Article 8 of the TRIPS
Agreement.  If yes, please explain how such measures are consistent with the provisions of theTRIPS Agreement.
Albanian legislation related to socio-economic development aims in general to the protection
of the public health and nutrition.  It takes care of the public interest and the general well-being.  In
Albania, the legislation on intellectual property is not dealing directly with the protection of the public
health and nutrition.  However, Article 3.7 of the Law on Industrial Property stipulates that no patentsshall be granted in respect of essentially biological processes for the production of plants or animals,
whereas in Article 40 it is stated :  "Where the national security or public safety so requires, theIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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Minister may authorize, even without the agreement of the owner of the patent or of the applicant, by
notice published in the Official Journal, a government agency or a person designated in the said notice
to make, use or sell an invention to which a patent or a patent application for a patent relates, subject
to payment of equitable remuneration to the owner of the patent or the applicant."
The Ministry of Agriculture and Food will improve the legislation to protect public health and
nutrition by regulations, which will be in compliance with international standards, especially
regulations dealing with genetically modified organisms.
Several decisions of the Council of Ministers establish procedures for granting compulsory
licenses on public interest grounds.
COPYRIGHT AND RELATED RIGHTS
2. Please state how your legislation provides for the protection of the exclusive rights of
authors in relation to their literary and artistic  works, as specified in Article 9 of the TRIPS
Agreement which requires Members to comply with  Articles 1-21 of the Berne Convention and
the Appendix to the B erne Convention (1971)).
Albanian Law on Copyright (Law No. 7564, dated 19 May 1992 and its amendments) is in
compliance with Articles 1-21 of the Berne Convention.
Article 1 of this Law provides for the protection of the literary, artistic, public and other
works including any original intellectual creation of this nature.  The protection does not depend on
the manner and form of expression, neither on the quality or the aim of the work.  And it is not
extended to ideas, procedures, processes, systems, ways of action, concepts, expressed principles or
discoveries.
Article 4 deals with moral rights stating that even if the economic rights have been transferred
by his desire, the author has the right to:
a) claim authorship of the work, especially the right to write his name on the copies of
the work. When allowed by practice and in conformity with the tradition, his name
may accompany his work mentioned in public;
b) remain anonymous or use a pseudonym;c) object to any distortion, mutilation or modification and to other derogatory action in
relation to his work, which would be prejudicial to his honour or reputation;
d) object the joint authorship put in an arbitrary way from other persons because of
different reasons.
And Article 5 refers to economic rights stipulating that the author shall have the exclusive
right of authorizing:
a) the reproduction of the work;
b) the importation of the work, with the purpose of its distribution (selling, leasing,
renting, loaning) to the public;
c) the translation of the work;IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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d) the preparation of adaptations, alterations or other alterations of the work;
e) the public recitation of the work;
f) the communication of the work to the public by broadcasting and rebroadcasting;
g) the communication of the work to the public by wire or other means.
3. Please describe the protection accorded to authors of computer programs, databases or
compilations of data.
Article 1 a) of the Law on Copyright, as  amended by Law No. 8594 dated 6 April 2000
stipulates that this Law protects written works including computer programs whether in source or
object code.
Treating derived works and collections, Article 2 underlines that the same protection as to the
works is applied to:
a) translations, adaptations, arrangements, and other alterations of works and folkloric
materials;
b) collections of works, popular sayings or data and facts as encyclopaedias, anthologies
and other sources of data which, by reason of the selection and arrangement of their
contents constitute original creations.
As regards economic rights, Article 5 of the Law states that the author of an audiovisual
work, or any other work like phonograms, comput er programs, databases and of any other work
readable in machine, has the exclusive right to authorize giving on lease of his work.
4. Please state whether your legislation provides for a rental right and, if so, the works to
which it applies.
Article 5 b) of Copyright Law stipulates that the author shall have the exclusive right of
authorizing the importation of the work, with the purpose of its distribution (selling, leasing, renting,
and loaning) to the public.  And, further on: "the author of an audiovisual work, or any other work like
phonograms, computer programs, databases, and of any other work readable in machine, has the
exclusive right to authorize giving on lease of his work."
Dealing with the producers of phonograms, Article 35 c) underlines that no one can lease or
loan copy of the phonogram without the au thorization of the producers of phonograms.
5. Please describe the rights granted to performers, producers of phonograms (sound
recordings) and broadcasting organisations under your legislation.
Article 34 of Law on Copyright provides for the protection of performers and states that no
one can undertake the following acts without the authorization of the performers:
1. The broadcasting of their programmes, except for the cases when the programme
consists of:
a) a fixation of the performance, excluding the registration done according to
the provisions of Article 39;IP/Q/ALB/1, IP/Q2/ALB/1,
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b) a re-broadcasting authorized by the organization, which has broadcasted the
programme for the first time.
2. The communication to the public of their performance, except for the cases when this
performance consists of:
a) the fixation of the programme;
b) the broadcasting of the performance.
3. The fixation of the unfixed performance.
4. The reproduction of fixation of their performance in the following cases:
a) when the performance is fixed before, without the authorization of the
performers;
b) when the reproduction is done for purposes other than those authorized by the
performers;
c) when the performance is first fixed in compliance with the provisions of
Article 35, but the reproduction is done for purposes other than those defined
in that article.
In case of absence of a contractual agreement that provides otherwise or of absence of such
employment conditions from which results the contrary:
a) the authorization to broadcast does not mean authorization to grant license to other
organizations for the broadcasting of the performance;
b) the authorization for broadcasting does not mean authorization to fix the
performance;
c) the authorization for the fixation of the performance and the reproduction of the
fixation does not mean the authorization to broadcast the performance;
d) the authorization for broadcasting and fixing the performance does not mean
authorization for reproduction and fixation.
The provisions of the first and second paragraph, parts (c) and (d) are not applicable from the
moment that the performers give the authorization to include their performance in a visual and
audiovisual fixation.
None of the paragraphs of this article takes  off the right of the performers to sign contracts in
more favourable conditions for their performances.
In Article 35, which deals with the protecti on of the producers of phonograms, it is stated:
Without the authorization of the producers of phonograms no one can:a) reproduce directly or indirectly the phonogram;
b) import any copy of the phonogram;IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
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c) lease or loan copy of the phonogram.
Treating the protection of broadcasting organizations, Article 37 underlines that no one can
undertake the following acts without their authorization:
1) the re-broadcasting of their programmes;
2) the fixation of their programmes;
3) reproduction of the fixation of their programmes:
(a) when the fixation on which bases a reproduction is done, is realized without
the authorization of these organizations;  or
b) when the broadcasting is firstly fixed in accordance with the provisions of
Article 39, but the reproduction is done for other purposes from thosementioned in that article.
6. Please state whether your legislation provides for any limitation or exception in relation
to each of the rights described above in acco rdance with the relevant provisions of the Berne
and Rome Conventions and in light of Articles 13 and 14.6 of the TRIPS Agreement.
Articles 6 to 16 and Article 38 deal with limitations of the economic rights of the author
defining as lawful reproductions which are perm itted without the authors approval and without
payment or remuneration;  the reproduction for personal use;  that given in the form of citation;  use
for teaching;  reproduction from libraries and archives with the purpose of storing or replacing of a
copy, (in case of loss, damage etc);  reproduction for legal and administrative purposes;  for giving
information;  use of pictures of publicly exposed works;  reproduction or adaptation of a computerprogram if this copy or adaptation is indispensable for the use of the computer program and for the
purpose the program is legally obtained or if it is used for archives and if necessary (in case of loss,
damage or overuse) to replace the legally obtained copy (the copy or the adaptation provided for in
the first paragraph is destroyed in cases when the ownership of the copies of the computer programs is
no longer legal);  the reproduction of the code and the adaptation (upon some conditions) that arenecessary to get the required data for the interaction of a computer program which is created
independently of the other programs;  recording for temporary use by a broadcasting organization and
with its own means and the performance of a work dur ing the activity of a school institution when it is
prepared and listened by the staff.
7. Please state the terms of protection of ea ch right described above and the work or
subject matter to which it applies.
According to Law No. 7923, dated 19 April 1995, Article 1, the terms of protection are as
follows:
Moral rights are protected permanently.
Economic rights:
- Copyright: the lifetime of the author and 70 years after his death.- Works of applied art: moral and economic rights protected for 25 years from the
making of such works.IP/Q/ALB/1, IP/Q2/ALB/1,
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- Rights of performers: 50 years, starting from the end of the year in which the
performance has taken place.
- Rights of producers of phonograms: 50 years, starting from the end of the year, in
which the phonogram has been produced for the first time.
- Rights of broadcasting organizations: 50 year s, starting from the end of the year, in
which the broadcasting has taken place.
8. Please state how your legislation grants the retroactive protection provided pursuant to
Article 18 of the Berne Convention (the obligatio n of which derives from Article 9 of the TRIPS
Agreement) and Article 14.6 of the TRIPS Agreement.
The retroactive protection according to Article 18 of the Berne Convention is provided by
Article 6 of Law No. 8594 dated 6 April 2000, which replaces Article 51 of the previous law and
stipulates that:
"the provisions of this law shall apply to works created before the moment this law came into
force but have not yet fallen into the public domain through the expiry of the term of
protection afforded under this law".
TRADEMARKS
9. Please give the definition of a sign under your national legislation and explain under
what conditions it is protectable.
Article 73 of the "Law on Industrial Property" (1994) gives the definition of a sign and under
what conditions it is protectable.  According to this Article:
1. Any sign or any combination of signs capable of distinguishing the goods or services
of one natural or legal person from those of another natural or legal person and ofbeing represented graphically may serve as a mark for goods or a mark for services
(hereinafter referred to as "mark").
2. A collective trademark is a trademark registered by an industrial or commercial
cooperation, or an association or the like organisation of several enterprises, and
which is used in order to designate the goods and services of this association.  Each
enterprise of this association may also simultaneously, have its own trademarks.
Particular provisions on collective trademarks are prescribed in specific articles ofthis Law, but in other cases, the provisions prescribed to trademarks also apply to
collective trademarks.
3. The following signs may constitute a mark
- words, including personal names, letters, numerals, abbreviations;
- figurative signs, including devices, shapes of goods or of their packaging;- combinations of colours and shades of colours;
- any combination of the signs referred to  in items (a) to (c) of this Article.IP/Q/ALB/1, IP/Q2/ALB/1,
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4. Specific types of trademarks such as sound and light signals or other signs may be
registered, if they can be graphically represented.
10. Please confirm whether or not services are a protectable subject matter in your
trademark law.  Please confirm if signs, such as trade names, are protectable.  Please describe ifelements such as sound, perfumes and containers are protectable.
According to Article 73, paragraph 1 of the law any sign or any combination of signs capable
of distinguishing the goods or services of one natural or legal person from those of another natural or
legal person and of being represented graphically may serve as a mark for goods or a mark for
services.
In compliance with this paragraph, trade names are considered as signs and can be protected.
And, as it is stated in Article 8 of Paris Convention, the Albanian Law on Industrial Property includes
no provision that obliges the registration or the depositing of a trade name.  Article 18 of the Law
"On the Provisions that Regulate the First Part of the Commercial Code" sets forth that within one
month from the day of the beginning of a commercial activity, the tradesman should announce his
name and deposit his original signature at the  court appointed to keep the commercial register.
According to Article 73, paragraph 3 and 4, sounds and containers are also protectable (see
the answer of question 1).
11. Please explain what the requirements of use a re, if any, as a condition for a trademark
registration.  Please explain the definition of use and the conditions of maintenance of a
registration in that respect.
According to Article 92:
1) The registration of a mark may be revoked if the owner of the registered mark has not
used it in connection with the goods or services referred to in the registration during a
period of three years, without good reason (as amended by Law No. 8477, dated
22 April 1999).
2) A request to revoke the registration of a mark on the ground of the above-mentioned
paragraph may be submitted to the Court by any interested party.  The Court shall
inform the Patent Office of its decision within 1 month from the date the decision is
adopted.
3) A registration may not be revoked on the ground of paragraph 1 of this Article, in the
case of any of the following uses of the registered mark in connection with the goods
or services referred to in the registration:
a) use made under a licence contract recorded in the register of marks;
b) use of the mark in a modified form, which does not alter its distinctive
character;
c) use of the marks in publicity and business correspondence.
4) Any revoked registration shall cease to have effect on the date, which the revocation
becomes effective.IP/Q/ALB/1, IP/Q2/ALB/1,
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5) The Patent Office shall record the revocation in the register of marks and publish the
revocation of the mark and any other alteration made on the ground of this Article.
12. Please confirm whether or not your legislation permits that the registration of
trademarks be indefinitely renewable.
Yes, it is possible, according to Article 86 which states:
1) The registration of a trademark and service mark is made for 10 years counted from
the filing date.
2) The application for the renewal of a registration contains the following elements:
a) a request for the renewal of the registration;
b) the name and the address of the owner of the registered mark;c) the date and the registration number of the registration concerned;
d) the name and the address of the representative, if any;
e) the names of goods and/or services grouped according to the International
Classification of the Goods and Services, for which the renewal of the
registration is sought;
f) the signature of the owner of the registered mark or his representative, if any.
3) The registration of a mark may be renewed, on payment of the prescribed fee, for
additional terms of 10 years.
13. Please describe the special requirements, if any, prescribed by your legislation
concerning the use of a trademark.
Article 92, paragraph 3 a), b) and c) gives some requirements concerning the use of a
trademark:
A registration may not be revoked on the ground of paragraph (1) of this Article, in the case
of any of the following uses of the registered mark in connection with the goods or servicesreferred to in the registration:
a) use made under a licence contract recorded in the register of marks;
b) use of the mark in a modified form, which does not alter its distinctive character;
c) use of the marks in publicity and business correspondence.
G
EOGRAPHICAL INDICATIONS
14. Please explain whether or not your trademark registration authority refuses a
trademark application if it contains a geographical indication.
Article 74, paragraph 1 b) gives the power to the trademark registration authority to refuse a
trademark application if it contains a geographical indication:IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 13
A mark shall not be registered as a trademark if it consists exclusively of signs or indications,
which may serve in trade, to designate the kind, quality, quantity, intended purpose, value,
geographical origin, or the time of production of the goods or of rendering the services, or other
characteristics of the goods or services.
15. Please give the definition of a geographical indication in your legislation.
This kind of definition is given in Article 93, paragraphs 1, 2, 3 of the law:
1) The appellation of origin is used to mark the natural agricultural products, the
industrial and handicrafts products.
2) The appellations of origin protect:
a) geographical names of products, whose distinctive properties are mainly due
to the location or region where they are produced, if such properties are a
natural consequence of either the climate or soil or of established
manufacturing procedures or processes;
b) the name of a product which has become generally known through long term
use in the course of trade as an indication that the product originates from acertain location or region.
3) Geographical names which have become generally known through long-term use in
the course of trade as designations for certain kinds of products may not be protected
by appellations of origin.
16. Please describe and explain the provisions of your legislation establishing a link, if any,
between the characteristics of an indication and its geographical origin.
The link between the characteristics of an indication and its geographical origin is established
by Article 93, paragraph 2 of the "Law on Industrial Property" (1994) and Articles 13 and 14 of the
Law "Some changes and supplements to the Law on in dustrial property" (1999).  According to these
articles:
The appellations of origin protect:a) geographical names of products, whose distinctive properties are mainly due to the
location or region where they are produced, if such properties are a natural
consequence of either the climate or soil or of established manufacturing procedures
or processes;
b) the name of a product which has become generally known through long term use in
the course of trade as an indication that the product originates from a certain location
or region.
Persons not authorized to use an appellation of origin may not use such appellation even if
they add the words "type", "style", "fashion", "produced as" or similar words. (Article 13)
The protection of the appellation of origin  shall be applicable against a geographical
indication which, although literally true as to the territory, region or locality in which the goods
originate, falsely represents to the public that th e goods originate in another territory. (Article 14)IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 14
17. Please describe how additional protection is granted by your legislation to wines and
spirits.  Please mention other types of products, if any, covered by this additional protection.
The Law on Industrial Property does not have any special provisions for additional protection
granted to wines and spirits.  Article 93.1 of this Law defines goods protected by appellation of originas natural, agriculture, industrial and handicraft products.  This also includes protection for wines and
spirits.  However, in the Law "On the viniculture, wine and other products deriving from grape" (Law
No. 8443 dated 21 January 1999) and its regulation, both administrated by the Ministry of Agriculture
and Food, there are well defined criteria concerning the denomination of controlled origin.
18. Please explain how exceptions under Article 24 of the TRIPS Agreement are used in
your jurisdiction.  Please provide examples of the use of the exceptions by courts or lists of
names considered as generic in your jurisdiction.
Exceptions like those foreseen in Article 24 of the TRIPS Agreement do not exist yet in
Albanian legislation. Some of them will be provided  for in new amendments in the near future.  It is
up to the Albanian Patent and Trademark Office to decide case by case during the examination
procedure whether or not a name is generic.
I
NDUSTRIAL DESIGNS
19. Please explain whether or not your legislat ion extends to the protection of designs
dictated essentially by technical or functional considerations.  Please explain how textile designs
are protected.
In Article 39 of the Law it is stated:
1) For the purposes of the Law, "industrial design" (hereinafter referred to as "design")
means the features of the appearance of a product which are not dictated solely by the
technical function of the product and which confer to it a special appearance.  The
designs may be two or three dimensional or a combination of them.
2) a) In order to be protectable, an industrial design must be new and usable in
industrial or handicraft products.
b) An industrial design shall be considered to be new if it is not identical or
closely similar to an industrial design  which by publication or by public use
has been made available to the public, anywhere in the world, before thefiling date or, where priority is claimed, before the priority date of the
application for the registration of the former design.
c) Subparagraph 21 of this Article shall not apply in respect of any publication
or public use which was made by the creator of the industrial design or hissuccessor in title within a period of 12 months prior to the filing date of the
application or, where priority is claimed, the priority date.
Industrial designs are protected like other designs.
20. Please explain how your legislation protects right holders of a design against importing
of articles bearing embodied or copied design.
These rights are protected by Article 67 of the law, which reads:IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 15
1) The owner of the registered design shall have the right to prevent third parties from
making, importing, offering to supply or distributing, or having in their possession for
these purposes, any products that incorporate the registered design or closely similar
design, when such acts are undertaken for commercial purposes.
2) Paragraph (1) of this Article shall not have effect in respect of mentioned products in
that paragraph, which have been put on the market in the territory of the Republic of
Albania, or in any territory specified in bilateral or multilateral agreement of the
Republic of Albania.
3) The rights conferred by the registration shall not extend to equipment on ships,
aircraft and any other vehicles not registered in the territory of the Republic of
Albania, when these temporarily enter in the territory of the Republic of Albania, aswell as the importation of spare parts and accessories for the purpose of repairing
such vehicles and the execution of repairs on such vehicles.
21. Please state whether or not your legislation provides for the right to issue a compulsory
licence for industrial designs.
Our legislation does not provide for the right  to issue a compulsory licence for industrial
designs.  It provides licence contracts.  Under Article 69 of the law:
1) For the purposes of this law, "licence contract" means any contract by which the
owner of an registered design ("the licensor") gives to the other party ("the licensee")
his agreement for that other party to do any of the acts referred to in Article 68(1) ofthis Law.
2) A licence contract shall be made in writing and shall be signed by the parties to the
contract. Otherwise it shall not be valid.
The fact that the contract has been concluded shall be recorded in the Register of industrial
designs on payment of the prescribed fee.  The licensee shall be entitled to institute any legalproceedings concerning the licence contract only if it has been recorded in the Register of industrial
designs.
22. Please indicate for what period of time your legislation grants protection for industrial
designs.
In Article 68 of the law it is stipulated:
1) The registration is made for 5 years counted from the filing date;
2) The registration may be renewed, on payment of the prescribed fee, for additional
terms of five years each up to a total term of 15 years counted from the filing date.
P
ATENTS
23. Please describe how your legislation defines the notions of: novelty, inventiveness and
industrial application.
According to Article 4 of the law:IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 16
1) An invention shall be considered novel  if it does not form part of the prior art.  For
the determination of novelty, items of prior art may only be taken into account
individually.
2) The prior art shall consist of everything which, before the filing date or, where
priority is claimed, the priority date of the application claiming the invention
(hereinafter priority date), has been made available to the public by means of
publishing, use, demonstration or in any other way.
3) The prior art shall also include the content of any patent application as filed in, or
with effect for, the Republic of Albania, to the extent that such application or the
patent granted thereon is published subsequently, provided that the filing date or,
where priority is claimed the priority  date of such application is earlier than the date
referred to in paragraph (2).
According to Article 5 of the law:
An invention shall be considered to involve an inventive step if, having regard to the prior art,
it would not have been obvious to a person skilled in the art at the filing date or, where priority isclaimed, the priority date of the application claiming the invention.
According to Article 6 of the law:An invention shall be considered industrially applicable  if it can be made or used in any kind
of industry.  Industry shall be understood in its broadest sense and shall cover any productive
activities and services.
24. Please explain whether or not in your legislatio n, patent or otherwise, patent rights are
enjoyed without any exclusions.  If exclusions a re provided for, please describe in detail how
these exclusions are applied in legal as well as practical terms.
Exclusions from patentability are specified in Article 3, paragraphs 2-7 as follows:
2) The following, in particular, shall not be re garded as inventions within the meaning of
paragraph (1):
a) discoveries, scientific theories and mathematical methods;b) aesthetic creations;
c) schemes, rules and methods for performing mental acts, playing games or
doing business, and programs for computers;
d) presentations of information.
3) The provisions of paragraph (2) shall exclude patentability of the subject-matter or
activities referred to in that provision only to the extent to which a patent application
or patent relates to such subject-matter or activities as such.
4) A patent shall not be granted in respect of an invention the publication or exploitation
of which would be contrary to public order or morality.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 17
5) No patents shall be granted for substances obtained through internal nuclear
transformations for military purposes.
6) No patents shall be granted for inventions of surgical, diagnostic or therapeutical
methods practised on the human or animal body, as they shall be regarded asinventions which are not susceptible of industrial application within the meaning of
paragraph (1).  This provision shall not apply to inventions relating to substances and
devices for use in any of these methods.
7) No patents shall be granted in respect of plant or animal varieties or essentially
biological processes for the production of pl ants or animals; this provision does not
apply to microbiological  processes or the products thereof.
25. Please explain whether your legislation prov ides for the exclusion of inventions from
patentability based on ordre public  or morality.  If so, please explain the relevant section of your
legislation and explain its formulation.  Please also explain if it has been applied in practice.
Please see paragraph 4 of Article 3 (cited above).  Until now, there are no cases applied in
practice.
26. Please explain whether or not diagnostic, th erapeutic and surgical methods are excluded
from patentability in your legislation. If so, please explain the relevant section of your legislation
and explain its formulation.
Yes, they are excluded.  Please see paragraph 6 of Article 3 as cited above.
27. Please explain whether or not plants, animals and essentially biological processes are
excluded from patentability in your legislation. If so, please explain the relevant section of your
legislation and explain its formulation.
Yes, they are excluded.  Please see paragraph 7 of Article 3 as cited above.
28. Please describe how micro-organisms, non-essentially biological processes,
microbiological processes and plant varieties are protected in your legislation. Please explain, inthis respect, the relevant sections of your legislation.
They are protected under the second part of paragraph 7, of Article 3 of the law (see above).
We are preparing all the documents to ratify in the near future the Budapest Treaty for the
protection of micro-organisms.
The Ministry of Agriculture and Food has prepared a new law for the protection of new
varieties of plants according to UPOV standards, which should enter into force probably by the end of
this year.
29. Please explain how your legislation protects  patent right holders against the importing
and against the offering for sale of a patented invention.
In Article 27 of the law it is defined:
1) Where the patent concerns a product, the owner of the patent shall have the right to
prevent third parties from performing, wit hout his authorization, the following acts:IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 18
a) the making of a product incorporating the protected invention;
b) the offering or the putting on the market of a product incorporating the
protected invention, the using of such a product, or the importing or stocking
of such a product for such offering or putting on the market;
c) the inducing of other parties to perform any of the above acts.
2) Where the patent concerns a process, the owner of the patent shall have the right to
prevent third parties from performing, wit hout his authorization, the following acts:
a) the using of a process which is the subject matter of the patent;
b) in respect of any product directly obtained by such process, any of the acts
referred to in paragraph (1)(b), even where a patent cannot be obtained for the
said product;
c) the inducing of other parties to perform any of the above acts.
30. Please state if your legislation provides for patent product protection of pharmaceutical
and agricultural chemical products.  In the a ffirmative, please indicate the legal reference.
Yes.  It is according to Article 3, paragraph 1 of the law which states:
"In order to be patentable, an invention shall be novel, shall involve an inventive step and
shall be industrially applicable."
Whereas Article 6 underlines:
"An invention shall be considered industrially app licable if it can be made or used in any kind
of industry.  Industry  shall be understood in its broadest sense and shall cover any productive
activities and services."
31. Please clarify if the patent protection of a process, as provided for in your legislation,
covers the product obtained directly by that process.
According to Article 27, paragraph 2 of the law:
Where the patent concerns a process, the owner of the patent shall have the right to prevent
third parties from performing, without his authorization, the following acts:
a) the using of a process which is the subject matter of the patent;
b) in respect of any product directly obtained by such process, any of the acts referred to
in paragraph (1)(b), even where a patent cannot be obtained for the said product;
c) the inducing of other parties to perform any of the above acts.
32. Please explain the additional conditions, if any, in your legislation other than the
sufficient disclosure of the invention in Articl e 29 of the TRIPS Agreement (e.g. submission of
justification for access to genetic material or prio r inform consent to its use).  If such additional
conditions exist, please point out the relevant legislations and describe the additional conditions
in detail.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 19
Paragraph 1 of Article 13 of the law states:
a) The application shall disclose the invention in a manner sufficiently clear and
complete for the invention to be carried out by a person skilled in the art.
b) Where the application refers to biologically reproducible material which cannot be
disclosed in the application in such a way as to enable the invention to be carried out
by a person skilled in the art and such material is not available to the public, the
application shall be supplemented by a deposit of such material with a recognized
depositary institution.
33. Please describe if your legislation provides for limited exceptions to the exclusive rights
conferred by a patent.  If affirmative, please make a reference to relevant legislation.
Article 27, paragraph 3 of the law states:
The owner of a patent shall have no right to prevent third parties from performing, without his
authorization, the acts referred to in paragraphs (1) and (2) (cited above) in the followingcircumstances:
a) where the act concerns a product covered by the patent after it has been put on the
market by the owner of the patent, or with his express consent, in the Republic of
Albania or in any territory specified in the bilateral or multilateral agreements whichhave been acceded to by Republic of Albania;
b) where the act is done privately and for non-commercial purposes, provided that it
does not significantly prejudice the economic interests of the owner of the patent;
c) where the act is done for purely experimental purposes or for scientific research;
d) where the act consists of the extemporaneous preparation for individual cases, in a
pharmacy or by a medical doctor, of a medicine in accordance with a medical
prescription or acts concerning the medicine so prepared.
34. Please explain whether or not your legislatio n provides for compulsory licensing. If so,
please explain in detail the conditions under which a compulsory licence may be granted.  In
particular, please explain how your national le gislation considers individual merits in the
authorization of such use.
The granting of compulsory licences is regulated under Articles 39 and 40 of the Law on
Industrial Property and Article 22 of the Law No. 8477 dated 22 April 1999 (General Provisions on
Compulsory Licences):
1) On the request of any person who proves his ability to work the patented invention in
the Republic of Albania, made after the expiration of a period of four years from thefiling date of the application for the patent or three years from the grant of the patent,
whichever is later, the Patent Office may grant a non-exclusive, non-voluntary licence
if the patented invention is not worked or is insufficiently worked in the Republic of
Albania.  The grant of the non-voluntary licence shall be subject to the payment of
equitable remuneration to the owner of the patent.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 20
2) A non-voluntary licence shall not be granted if the Patent Office is convinced that
circumstances exist which justify the non-working or insufficient working of the
patented invention in the Republic of Albania.
3) In deciding whether to grant a non-voluntar y licence, the Patent Office shall give both
the owner of the patent and the person requesting the non-voluntary licence an
adequate opportunity to present arguments.
4) Any non-voluntary licence shall be revoked when the circumstances which led to its
granting cease to exist, taking into account th e legitimate interests of the patent owner
and of the licensee.  The continued existence of these circumstances shall be
reviewed upon request of the patent owner.
Where the national security or public safety so requires, the Prime Minister may authorize,
even without the agreement of the owner of the patent or of the applicant, by notice published in the
Official Journal, a government agency or a person designated in the said notice to make, use or sell
an invention to which a patent or a patent application for a patent relates, subject to payment of
equitable remuneration to the owner of the patent or the applicant.  The decision of the Prime
Minister may be subject of an appeal to the Court.
1) An applicant for a compulsory licence shall be required to prove that the requirements
for a compulsory licence have been complied with, and further that:
a) the patentee was unwilling to grant a voluntary licence to exploit the patent
under appropriate conditions and within a reasonable period of time;
b) he is able to exploit the invention to the required extent.
2) The scope and duration of a compulsory licence shall be established by the court,
taking into account the purpose of the exploitation authorized by the compulsory
licence;  a compulsory licence may be granted with or without limitation.  Unless
relinquished or cancelled, a compulsory licence shall have effect until expiration ofthe term of validity fixed by the court or until the lapse of patent protection.
Compulsory licences shall be recorded in the Patent Register.
3) The patentee shall receive adequate compensation for the compulsory licence, which
shall be fixed, failing agreement between the parties, by the court.  The compensation
shall take into adequate account the economic value of the compulsory licence.  In
particular, it shall be commensurate with  the royalty the holder of the compulsory
licence would have paid on the basis of an exploitation contract concluded withpatentee, taking into account the licensing conditions in the technical field of the
invention.
4) The holder of a compulsory licence shall have the same rights as the patentee in
regard to the maintenance of the patent and exercise of the rights deriving from
protection.
5) A compulsory licence may not be assigned or transferred to any other person.
Compulsory licences are non-exclusive and non-transferable, even in the form of sub-
licence, except with that part of the enterprise or goodwill which exploits such
licence.  The holder of the compulsory licence may not grant a licence of
exploitation.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 21
6) The holder of a compulsory licence may relinquish his compulsory licence at any
time.  If the holder does not begin exploitation within one year from the definitive
grant of the compulsory licence, the patentee may claim modification or cancellation
of the compulsory licence.
7) The patentee may request modification or cancellation of a compulsory licence if the
circumstances on which it was based cease to exist and are unlikely to occur again.
Modification or cancellation shall take a form that does not prejudice the legitimate
interests of the holder of the compulsory licence.
35. Please explain how your legislation explicitly ensures that a proposed user has made
efforts to obtain authorization from the righ t holder on reasonable commercial terms and
conditions and that such efforts have not been successful within a reasonable period of time. In
this context, how do you define "reasonable period of time".  Please also explain how your
legislation ensures that the use of a compulsory  licence shall be author ised predominantly for
the supply to the domestic market of the Member authorizing such use.
A compulsory licence will only be granted if the applicant has previously made efforts to
obtain a contractual license from the patent holder on reasonable commercial terms and conditions
and these efforts have not been successful within a reasonable period of time.  The expression
"reasonable period of time" has to be determined by the competent authority on a case-by-case basis,
in accordance with the relevant circumstances.
Concerning the use predominantly for the home market, as one of the conditions under which
a compulsory license will be granted, Article 39 stipulates that it must be used within the territory of
the Republic of Albania, which in conformity with Article 31(f) of the TRIPS Agreement.
36. Please state if your legislation grants additi onal protection for innovations after the 20
years of patent protection has lapsed.
Article 28, paragraph 5 of the law provides for additional protection only for pharmaceutical
products.  It states that the term of a patent for invention related to pharmaceutical products can be
extended over 20 years, but no more than 5 years.
37. Please explain how your legislation provide s for the enhanced patent protection of
patents or patent applications pending on 1 January 1995.
Our Law on Industrial Property does not provide additional protection based on the date of
filing of the patent application. All patents are gran ted in conformity with the standards of protection
specified in the TRIPS Agreement and the Albanian laws on industrial property.
38. Please explain how your legislation provides for the reversal of the burden of proof in
relation to process patents.
Our law provides for such a principle according to Articles 41-42, where it is stated:
1) Subject to this Law, the performance of any act referred to in Article 27(1), (2) and
(4) in Albania by a person other than the owner of the patent, and without the consent
of the latter, in relation to a product or process falling within the scope of protection
of the patent shall constitute an infringement of the patent.
2) Subject to this Law, the performance of any act referred to in Article 27(1), (2) and
(4) in Albania by a person other than the applicant, and without the consent of theIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 22
applicant, in relation to a product or process falling within the scope of provisional
protection conferred on a published patent application under Article 20(3) shall
constitute an infringement of that provisional protection.
1) The owner of a patent and the applicant for a patent shall have the right to institute
proceedings in the Court against any person who has infringed or is infringing the
patent or the provisional protection conferred on a published patent application.  The
owner of the patent and the applicant shall have the same rights against any person
who has performed acts or is performing acts which make it likely that such
infringement will occur ("imminent infr ingement").  The proceedings may not be
instituted after five years from the act of infringement.
2) a) If the owner of the patent proves that an infringement has been committed or
is being committed, the Court shall award damages and shall grant an
injunction to prevent further infringement and any other remedy provided in
the general law.
b) If the owner of the patent proves imminent infringement, the Court shall
grant an injunction to prevent infringement and any other remedy provided inthe general law.
3) a) Unless the licence contract provides otherwise, any licensee may request the
owner of the patent to institute Court proceedings for any infringement
indicated by the licensee, who must specify the relief desired.
b) Such licensee may, if he proves that the owner of the patent received the
request but refuses or fails to institute the proceedings within three months
from the receipt of the request, institute the proceedings in his own name.
After notifying the owner of the patent of his intention, the owner of the
patent shall have the right to join in the proceedings.
c) Even before the end of the three-month period referred to in subparagraph
(3)(b), the Court shall, on the request of the licensee, grant an appropriate
injunction to prevent infringement or to prohibit its continuation, if the
licensee proves that immediate action is necessary to avoid substantial
damage.
4) Where the subject matter of the patent is a process for obtaining a product, the burden
of establishing that a product was not made by the process shall be on the alleged
infringer if either of the following conditions is fulfilled:
a) the product is new;  or
b) a substantial likelihood exists that the product was made by the process and
the owner of the patent has been unable through reasonable efforts to
determine the process actually used.
Articles 12, 14 and 17 of the Civil Procedure Code also provide for the principle of the
reversal of the burden of proof in a process patent litigation.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 23
LAYOUT -DESIGNS (TOPOGRAPHIES ) OF INTEGRATED CIRCUITS
39. Please describe how your legislation protects Topographies.
Law No. 8488, dated 13 May 1999 "On protection of topographies of integrated circuits"
provides for protection as follows: Chapter I - Basic provisions;  Chapter II - Subjects of protection;
Chapter III - Common regulations for the procedure of protection;  Chapter IV - Contents, terms and
limitation of rights;  Chapter V - Procedure for prot ection and registration;  Chapter VI -Invalidation
of the register;  Chapter VII - Infringement of the right and compensation of the damage;  Chapter
VIII - Transitional and final provisions.
40. Please explain what protection your national legislation grants to right holders against
the unlawful importation, sale or distribution for commercial purposes of topographies
including integrated circuits or other articles in which a topography is incorporated in
accordance with Article 36 of the TRIPS Agreement.
Article 9 of our law is in full compliance with Article 36 of the TRIPS Agreement:
The holder of the protected topography shall be granted exclusive rights of commercial
exploitation, including the right to authorize or prohibited any of the following acts:
- reproduction of the topography by any means or in any form;
- importation, sale or other form of distri bution of the topography or products that
include integrated circuit incorporating the respective topography.
The exclusive rights referred to in Paragraph 1 shall not extend to any concept, process,
system or technical embodied in the topography other than the topography itself.
41. Please explain how your legislation provide s for the derogation from Article 36 as
specified in Article 37 of the TRIPS Agreement where a person has no knowledge or reasonable
grounds to know when acquiring an integrated circuit or an article incorporating such an
integrated circuit that it contains an unlawful topography.
With regard to Article 37 of the TRIPS Agreement, Article 16 of our law reads:
"A person who commercially exploits an integrated circuit incorporating the protected
topography, and does not know, or has no reas onable grounds to believe that the topography
of the product is protected shall not be prevented from commercially exploiting that
integrated circuit".
Compensation, the amounts of which depends on the scope of commercial exploitation of
protected topography, may be claimed from the person referred to in Paragraph 1, by the right holder
of the protected topography from the date when the person referred to in Paragraph 1 has known, or
has had reasonable grounds to believe that the topography is protected.
The amount of compensation under Paragraph 2 shall be agreed upon between the right
holder of the protected topography and the person referred to in Paragraph 1.  If no agreement is
achieved, the Court of Justice in Tirana shall decide on the amount of compensation.
The provisions of Paragraph 2 shall apply also to the successors in title of the person referred
to in Paragraph 2.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 24
The right of commercial exploitation is limited to importation, sale or distribution of the
products of integrated circuits or other products incorporating the respective topography, and this
right applies to a topography or products that were on hand at the time when the claim underParagraph 2 was received.
42. Please state the term of protection granted by your legislation to topographies.
According to the Article 10 of the law:
The exclusive rights shall expire after 10 years from the earlier of the following dates:
- the end of the calendar year in which the topography is first commercially exploited
anywhere in the world;  or
- the end of the calendar year in which the application has been filed in due form.
The exclusive rights shall expire before the period defined in Paragraph 3, if the respective
fees are not paid or if the right holder of the protected topography renounces protections in writing.
If a topography has not been commercially exploited, the exclusive rights shall expire after
15 years from its fixation or encoding.
P
ROTECTION OF UNDISCLOSED INFORMATION
43. Please explain whether or not your legislatio n grants a defined period of time for the
protection of undisclosed information. If so, please give the time span.
Albanian Competition Law protects business secrets, including trade secrets.  Article 49.1 of
the law prohibits disclosing business or operative secrets of competitors in an illegal manner or
encouraging the competitors' employees to do so.  Article 49.2 forbids using or giving others business
or operative secrets obtained in the course of employment or other confidential relations during the
term of those relations in order to gain competitive advantage for oneself or a third party or to damage
the owner of a commercial company.  The obligation continues for a period of two years after the
employment or confidential relationship is terminated if the owner of the business or operative secret
has a justifiable interest and the obligation does not unreasonably restrict the business or professionalactivity of others.
Albanian pharmaceutical legislation does not grant any defined period of time for the
protection of undisclosed information.  Neither the legislation on plant protection products.
44. Please explain how your legislation defines undisclosed information.
The Regulation of the Commission of the Verification of Manufacturing Conditions of
Pharmaceuticals and the Regulation for the Registration of Pharmaceuticals (amended) constitute the
Albanian legislation dealing with undisclosed information in this field. Both regulations do not define
explicitly what an undisclosed information is.  But in both of them, it is defined what kind of
information must be presented by manufacturers:  all documents presented by the manufacturer totake the approval for the manufacturing of drugs and all documents which comprise the drug dossier
for obtaining marketing authorization.  The regulation defines that the documentation which is
confidential is deposited in the National Center of Drugs Control and remains as exclusive property of
Albanian authorities that are engaged in the drug registration procedure. (Regulation of theIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 25
Commission of the Verification of manufacturi ng Conditions of Pharmaceuticals, point 12;
Regulation for the Registration of Pharmaceuticals (amended), point 21)
In the field of veterinary, Regulation No. 4, dated 30 December 1999 "On the registration of
the veterinary drugs" based on Law No. 7674, dated 23 February 1996 "On the veterinary service and
inspectorate", Article 14 points 2, 3 and 4 define clearly the procedure of registration of any medicine
imported and locally produced.  The registration is made in the state register - it is valid for 5 years
and, when necessary, can be renewed in conformity with the procedure fixed by European Union
directives on this problem. The registration is considered done after the issuing of the Minister Order.
The document is conserved in the Commission of Drugs Registration in the Veterinary
Division.
45. Please explain how your legislation de fines data submitted to governments or
governmental agencies.
On plant protection products, the data deposited by the interested companies asking for the
permission to market such products in the Republic of Albania, are protected by Decision of the
Council of Ministers No. 72 dated 15 February 2001 "On the approval of the regulation of plant
protection products".  In Article 6 of this regulation is defined that the protection of data is made on
the basis of the request of the applicant and there is no a defined period of time for their protection.
Albania protects data submitted to obtain marketing approval for pharmaceutical or
agricultural chemicals utilizing a new chemical entity.  For the protection of their confidentiality, in
the Regulation of the Commission of the Verification of Manufacturing Conditions on Pharmaceutical
point 12 is defined:
"After the verification from the Commission, documentation which is confidential is
deposited in National Center of Drugs Control together with a copy of authorization."
ENFORCEMENT
46. Please describe how your legislation provides for effective action against infringement of
intellectual property rights.
Patents
According to Article 42:
1) The owner of a patent and the applicant for a patent shall have the right to institute
proceedings in the Court against any person who has infringed or is infringing thepatent or the provisional protection conferred on a published patent application.  The
owner of the patent and the applicant shall have the same rights against any person
who has performed acts or is performing acts which make it likely that such
infringement will occur ("imminent infringement"). The proceedings may not be
instituted after five years from the act of infringement.
2) a) If the owner of the patent proves that an infringement has been committed or
is being committed, the Court shall award damages and shall grant an
injunction to prevent further infringement and any other remedy provided in
the general law.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 26
b) If the owner of the patent proves imminent infringement, the Court shall
grant an injunction to prevent infringement and any other remedy provided in
the general law.
3) a) Unless the licence contract provides otherwise, any licensee may request the
owner of the patent to institute Court proceedings for any infringement
indicated by the licensee, who must specify the relief desired.
b) Such licensee may, if he proves that the owner of the patent received the
request but refuses or fails to institute the proceedings within three months
from the receipt of the request, institute the proceedings in his own name,
after notifying the owner of the patent of his intention.  The owner of the
patent shall have the right to join in the proceedings.
c) Even before the end of the three-month period referred to in subparagraph
(3)(b), the Court shall, on the request of the licensee, grant an appropriate
injunction to prevent infringement or to prohibit its continuation, if the
licensee proves that immediate action is necessary to avoid substantial
damage.
4) Where the subject matter of the patent is a process for obtaining a product, the burden
of establishing that a product was not made by the process shall be on the alleged
infringer if either of the following conditions is fulfilled:
a) the product is new;  orb) a substantial likelihood exists that the product was made by the process and
the owner of the patent has been unable through reasonable efforts to
determine the process actually used.
According to Articles 57 and 58 of the law:
1) The Regional Court of Tirana shall have exclusive jurisdiction for any dispute
concerning a patent application or patent, in particular for:
a) any action for infringement or a declaration of non-infringement of a patent
or patent application;
b) any action or counterclaim for invalidation of a patent;c) any action concerning the right to the patent, the ownership or assignment of
a patent application or patent;
d) any action concerning a licence contract;
e) the grant of non-voluntary licences;
f) the review decisions of Board of Appeal of the Patent Office.
2) Decisions of the Regional Court of Tirana on any type of disputes referred to in this
Article may be appealed to the Court of Appeal.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 27
1) Within the period of patent duration, an ac tion may be instituted in Court without any
time limitation, if the dispute has arisen:
a) on invalidation of patents (Article 46);
b) on the grant of licences.
2) In other cases of disputes, which are not referred to in paragraph (1) of this Article,
the term for instituting an action in Court is limited to three years unless this Law or
the legislative acts in force provide for other terms.
Trademarks
According to Article 89:1) The owner of the registered mark shall have  the right to institute proceedings in the
Court against any person who has infringed or is infringing his rights under theconditions of Article 83 of this Law.  The owner shall have the same right against any
person who has performed acts or is performing acts which make it likely that such
infringement will occur ("imminent infringement").
2) a) If the owner of the registered mark proves that an infringement has been
committed or is being committed, the Court shall award compensation.  Inthese compensations will be included the profit of the person who has
performed the infringement, the damage which has incurred the owner of the
mark except the one included in the profit of the breaker and the expenses
including the law costs.  The Court shall grant an injunction to prevent
further infringement and any other remedy provided in the general law.
b) If the owner of the registered mark proves imminent infringement, the Court
shall grant an injunction to prevent further infringement and any other
remedy provided in general law.
According to Article 91:
1) The Court may, on the request of any person, invalidate a registration on the ground
that the registration does not comply with Article 73(3), 74, 75 and 76 of this Law.
2) Any invalidated registration shall be considered to be null and void from the date of
the registration.
3) When the decision of the Court to invalida te the registration becomes final the Court
shall notify the Patent Office of the decision.  The Patent Office shall record the
decision in the register of marks and publish it.
Industrial designs
According to Article 70:1) The owner of the registered design shall have the right to institute proceedings in the
Court against any person who has infringed or is infringing his rights under Article 67
of this Law.  The owner shall have th e same rights against any person who hasIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 28
performed acts or is performing acts which make it likely that such infringement will
occur ("imminent infringement ").
2) a) If the owner of the registered design proves that an infringement has been
committed or is being committed, the Court shall award compensations.  In
these compensations, will be included the profit of the person who has
performed the infringement, the damage which has incurred the owner of the
design except the one is included in the profit of the breaker and the expenses
including the law costs.  The Court shall grant an injunction to prevent
further infringement and any other remedy provided in general Law.
b) If the owner of the registered design proves imminent infringement, the Court
shall grant an injunction to prevent infringement and any other remedy
provided in the general law.
Appellation of origin
According to Article 93(1) (as amended by Law No. 8477 dated 22 April 1999):
Any person who has registered an appellation of origin and/or whose name is entered as a
user of the appellation of origin shall be entitled to use it for the designation of the goods covered by
its registration or to use it in advertising or on business papers.  He shall be entitled to prohibit the
use of the appellation of origin by third persons not entered as its users.
Article 10(1) of the Law on Industrial Property authorizes Courts to impose a fine on any
natural or legal person who knowingl y infringes an intellectual property right;  the amount of  the fine
is to be doubled in the  event of a repetition of the knowing infringement within 5 years of the original
offence.
Albanian Law on Copyright, under its new Article 50.b (as amended by Law No. 8594 dated
6 April 2000, Article 5), states that disputes between the user of an intellectual property work and the
author or the agency to which the rights have been transferred by the author, because of a violation of
the conditions specified in the contract concluded between them, are submitted by the interested party
to the relevant court for civil settlement.
Article 67 the Law on Competition authorizes courts to impose fine to any person who does
not respect business secrets.
Article 82(4) of the Customs Code states as following: "The customs authorities, upon request
of the holder of a trademark or patent of production or other neighbouring rights specified in theImplementing Provisions of this Code may prohibit their release in free circulation, the exportation,
the re-exportation and their placing under the suspensive procedure of the goods that are recognized to
be counterfeited or pirated goods, according to the procedures provided for in the Implementing
Provisions of this Code." (The Implementing Provisions of the Customs Code, under points 119-120,
state in more details about this subject).
47. Please explain whether or not your legislation provides for a mechanism to appeal to
judicial bodies of final administrative decisions.
According to Article 18 of the Administrative Procedures Code, in order to protect
constitutional and legal rights of private persons, the administrative activity is submitted to:
a) the interior administrative control;IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 29
b) the judicial control.
According to Article 97 of the Law on Industrial Property (as amended by Law No. 8477,
dated 22 April 1999), a Board of Appeal shall be established for the review of the disputes relating to
patents, trademarks, industrial designs and appellations of origin within the structure of theDirectorate of Patents and Trademarks which shall act in accordance with the law. Paragraph 4 of
Article 82(2) of the Law amended states:  The deci sion of the Board of Appeal on the conformity of
the application with the requirements of Articles 73(3)(4) of this Law shall be final.  The applicant
may, within six months from the date of decisions, appeal against other decision of the Board of
Appeal to the Court.
Article 57 of the Law on Industrial Property provides for appeal to the Court of Appeal of
decisions of the Regional Court in Tirana on patent disputes.
The Implementing Provisions of the Customs Code, under Point 119.3, constitute that:
"Against the decision of General Directorate of Customs concerning the suspension or not of the
infringing goods, the applicant may, lodge an appeal to the court according to the procedures providedunder Point 19(4) and 20(5) of the Customs Code."
And Point Article 120.3 underlines that if within 20 days from notification of the seizure of
goods or from the decision to suspend the release of the goods, the customs authorities do not receive
a copy of the appeal lodged with the competent authorities by the holder of the right, the customsauthorities revoke the decision to suspend the release of the goods or the seizure of the goods and
release the goods.
48. Please describe how your legislation authorizes judges to order production of evidence
by the opposing party.  Please give precise information on what measures are taken to ensurethe protection of confidential information.
As a rule the judicial authorities have the authority, subject at all times to the right of defence,
to order any of the parties to submit documentation or any other type of evidence at their disposal that
could be useful in clarifying the rights of the disputing parties, whether or not such evidence is held
by the parties or by third persons.  Specifically under Article 223 of the Albanian Civil Procedure
Code it is stated: "On the request of the interested party, the court may order the other party to present
in trial a document or another thing when this is esti mated as necessary by the court.  In this case the
court gives the necessary instructions on the time, place and manner of their presentation.  The party
which has requested the acquisition of the document is obliged to indicate in detail all the
circumstances which make credible as to where the document is, its characteristics as well as the facts
which shall be proved by this document".
Whatever the type of action or proceedings, the judicial authorities are under an obligation to
prevent the wrongful publication of confidential in formation brought forward in court or obtained by
the court in the course of the dispute.
In conformity with Article 26 of the Code of Civil Procedure, Article 173 of the same Code
cites some cases where, by a justified decision of the Court, the trial is allowed to be held in a session
entirely or partially behind closed doors. One of these cases is when trade, or invention secrets, the
publication of which would affect interests protected by law, are mentioned.
Article 26 of this Code states that the court may no allow the participation of press organs
when it estimates that such participation is not to the benefit of the case.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 30
49. Please quote provisions of your legislation that authorize judges to order a defendant to
desist from an infringement.
Articles 42, 70 and 89 of the Law on Industrial Property (cited in question 46) authorize the
court to enjoin patent, industrial designs and trademark infringements.
Article 243 of the Criminal Procedural Code states: "By the decision disposing the prohibition
to exercise specific professions or managing duties to legal entities, the judge prohibits temporarily
the defendant entirely or partly to exercise activities connected with them."
Article 240 of the same Code foresees as interdictive measures:
- suspension from exercise of a public duty or service;
- temporary prohibition from exercise of specific professional or business activities.According to Article 288(a) of Penal Code, the unlawful production and distribution on
commercial scale of industrial and nutritive articles and goods constitutes a criminal infringement
and is punishable with fine or imprisonment up to 2 years.  This offence, when committed in
collaboration with other persons, more than once, or when has brought serious consequences, is
punishable with imprisonment from 3 to 10 years.
50. Please quote what provisions of your legislation authorize judges to order the payment
to the right holder of adequate damages to compensate the injury he suffered.
Article 42, 70 and 89 of the Law on Industrial Property already cited authorize the court to
award compensation for patent, industrial designs and trademark infringements.
Treating the content of the court decision, Article 310 of the Albanian Civil Procedure Code
states that this decision must contain the introduction, the descriptive justifying part and the ordering.
In the ordering part, among others must be men tioned who is charged with the judicial expenses.
Under Section IV "Rules on determining value of lawsuit", Article 68 of this Code states:"When a sum of money or a removable thing is requested, the value is determined on the
basis of the amount indicated or of the value declared by the plaintiff. In the absence of
indication or of declaration, it is accepted that the determination of the value is a competence
of the court."
51. Please quote what provisions of your legislation authorize judges to order the payment
of the right holder's expenses by the infringer.
The Code of Civil Procedure constitutes the right of any person, according to the law, to
claim compensation of costs and damages caused by the infringer.  Under Article 106 it is stated
among others:  In its final decision, the court charges the party whose lawsuit has been dropped, to
pay the judicial expenses in conformity with Article 102 of this Code including the payment for oneadvocate.
52. Please explain if and how judges have the au thority to order that infringing goods are
placed outside channels of commerce or destroyed.
The new Article 89(3), of the Law on Indus trial Property (as amended by Law No. 8477,
dated 22 April 1999) states:  In addition to the measures specified in paragraph 2(a) of this Article, theIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 31
Court may re-establish the situation that existed befo re the infringement and to stop infringing actions,
to proceed with an effective seizure of the goods and, when necessary, to destroy illegally used marks,
tools that could be used to manufacture the goods and the goods themselves in absence of possibility
to remove any illegally used mark from such goods.
Under Implementing Provisions of the Customs Code, Point 120(1) it is stated that "when
customs authorities are satisfied after consulting the applicant if necessary, that goods or part of the
goods referred to on Point 119(1)(a) and (b), correspond to the description of the counterfeit or pirated
goods contained in the decision of the General Directorate of Customs, they suspend the release of the
goods or provide for the seizure of the goods depending on the situation".
Article 202 of the Criminal Procedure Code states:
"When grounded reasons to think that someone hides real evidence of criminal offence or
objects belonging to criminal offence exist, the court renders a decision regarding completion
of inspection of the person.  When these objects are in a certain place inspection of the placeor of the house is ordered",
and Article 207:"The objects which are found during the inspection may be attached in compliance with
provisions on attachment".
53. Please quote what provisions of your legislation authorize judges to indemnify a
defendant in the event of abuse by the plaintiff.
The Code of Civil Procedure constitutes the right of any person, according to the law, to
claim compensation of costs and damages caused by the infringer.  Under Article 106 it is stated
among others: In its final decision, the Court charges the party whose lawsuit has been dropped, to
pay the judicial expenses in conformity with Article 102 of this Code including the payment for one
advocate.
Under Implementing Provisions on the Customs Code, Point 120.4 and 119.4 it is stated that
"the plaintiff is obliged to forward payment of all eventual charges related to the warehousing of the
goods and is responsible for any damage caused to the defendant/importer or a third party".
54. Please explain how your legislation implements Article 50 of the TRIPS Agreement.
Article 42 of the Law on Industrial Property states that it has a course of action against any
person who is performing acts that make it likely that infringement will occur (imminentinfringement), Courts are authorized to grant an  injunction to prevent infringement and any other
remedy provided in general law.  Article 70 provides similarly for industrial designs.  Article 89
provides similarly for trademarks.  The new Article 93(1) provides similarly for geographical
indications.
In Article 101, paragraph 4 is added by Law No. 8477, dated 22 April 1999, which reads:
The judicial authorities shall have the authority to order prompt and effective provisional
measures:
a) to prevent an infringement of any intellectual property right from occurring, and in
particular to prevent the entry into channels of commerce in their jurisdiction of
goods, including imported goods immediately after customs clearance;IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 32
b) to preserve relevant evidence in regard to the alleged infringement.
Under Albanian Civil Procedure Code, Article 170 paragraph 7 states "as preliminary actions,
the judge decides, according to the case, the provision of the seizure of the goods or other provisional
relief".
Article 274 of the Criminal Procedural Code states:"When there is a danger that free possession of an object related to the criminal offence may
aggravate or prolong its consequences or facilitate the commission of other criminal offences
the competent court, on demand of the prosecutor, orders its attachment by reasoned
decision."'
Under Implementing Provisions on the Custom s Code, Article 119.4 states that General
Directorate of Customs can decide, upon approval of the application, that the applicant forward
advance payment, subject to revising, to the sa tisfaction of enforcement costs and indemnify the
defending party against harm due to the unjustified suspension of free release of goods.
The Code of Civil Procedure, under Title VI, Chapter IV deals with notices, whereas
Article 21 of the Code states that, when the law allows, and the circumstances of the case dictate the
taking of a judicial decision, independently from the knowledge of one party, the latter has the right to
appeal in a judicial way against the decision made.
55. Please identify the competent authorities in  your jurisdiction who receive requests from
right holders for an application to suspend the release of counterfeit goods by the customs
authorities.
Article 82(4) of the Customs Code states that the customs authorities, upon request of the
holder of a trademark or patent of production or other neighbouring rights specified in the
Implementing Provisions of this Code may prohibit the release in free circulation, the exportation, the
re-exportation and their placing under the suspensive procedure of the goods that are recognized to be
counterfeit or pirated goods, according to the procedures provided for in the Implementing Provisions
of this Code.
Under Implementing Provisions of the Customs Code, Point 119.1 constitutes that the holder
of the right may lodge an application in writing at the General Directorate of Customs, upon which,
customs authorities may suspend the release of the goods or seize the goods depending on the
situation (Point 120.1).
56. Please indicate whether or not procedures  are available to suspend the exporting of
counterfeit goods.
According to Article 82, the General Director orders the relevant customs authorities, anti-
smuggling structures and customs offices to suspend the counterfeit goods under any of the customs
regime (import, export etc) mentioned above.
57. Please quote what provisions of your legisl ation authorize the competent authorities to
order the destruction or disposal of infringing goods.
Article 81 of the Customs Code states that, where the circumstances so require, in cases of
danger for the life or health of humans or pollution, the customs authorities may have goods presented
to customs destroyed.  The customs authorities shall inform the holder of the goods accordingly.  The
costs of destroying the goods shall be borne by the holder.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 33
The Implementing Provisions on Customs Code, Article 120.1, states the General Directorate
of Customs may suspend the release of the goods or seize the goods depending on the situation.
The new Article 89(3) of the Law on Industria l Property (as amended by Law No. 8477, dated
22 April 1999) states:  In addition to the measures specified in paragraph 2(a) of this Article, the
Court may re-establish the situation that existed befo re the infringement and to stop infringing actions,
to proceed with all effective seizure of the goods and, when necessary, to destroy illegally used marks,
tools that could be used to manufacture the goods and the goods themselves in absence of possibility
to remove any illegally used mark from such goods.
58. Please indicate whether or not your legislation provides for a de minimis imports
exception.
Article 199(2) of the Customs Code mentions several cases where the relief from import
duties is granted.  Goods contained in travellers' personal luggage are mentioned in point (f) of the
same Article.  Points 477 to 560 of the Implementing Provisions of the Customs Code treat in moredetail these cases.
59. Please explain how your legislation implements Article 61 of the TRIPS Agreement.
Article 50 of Copyright Law as amended by Law No. 8594 dated 6 April 2000 underlines that
"the translation, adaptation, sound or visual recording, reproduction, the transmission of an artistic
work without the authorization of its author, which conflicts with the provisions of this law or theinternational conventions ratified by the Republic of Albania, when the author's moral and economic
rights have been infringed, constitutes a criminal work and is penalized by fine or imprisonment up to
one year."
Article 101 of the Law on Industrial Property pr ovides for fines in case of intentional
infringement stating:
"Any natural  or legal person who performs an act which he knows constitutes an
infringement of the patent, mark or design shall commit an offence and shall be punishable
from the Court by a fine between lek 20,000 and 100,000."
Whereas the Penal Code, as amended by Law No. 7883 dated 24 January 2001, under
Articles 147-149 underlines fines and imprisonment by up to four years for misappropriation of
property through fraudulence by introducing a work of art and culture as the original or by changing
the authenticity of the authorship; and fines and imprisonment by up to two years for partially or
completely plagiarizing somebody else's work or for unauthorized reproduction of somebody's work.
And, according to the same Law, Article 288(a) stipulates: The unlawful production and
distribution on commercial scale of industrial and nutritive articles and goods constitutes a criminal
infringement and is punishable with fine or imprisonment up to 2 years.  This offence, when
committed in collaboration with other persons, more than once, or when has brought serious
consequences, is punishable with imprisonment from 3 to 10 years.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 34
IV. RESPONSE TO QUESTION POSED BY JAPAN
A. C OPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the national treatment and most-favoured-
nation treatment under the Copyright and Neighbouring Rights Law, if any, as permitted inArticles 3 and 4 of the TRIPS Agreement.
The Albanian Copyright Law does not contain any provision on the exceptions provided for
in Articles 3 and 4 of the TRIPS Agreement relating to national treatment and most-favoured-nation
treatment.
V. RESPONSES TO QUESTIONS POSED BY SWITZERLAND
A. G
EOGRAPHICAL INDICATIONS
1. Please explain in detail how your legislation provides protection for geographical
indications.
Protection of geographical indications (appellation of origin) is provided by Articles 93 of the
"Law on Industrial Property" (1994) and Articles 13 and 14 of the "Law on some changes and
supplements on the "Law on industrial property" (1999) as follows:
The appellation of origin is used to mark the natural, agricultural products, the industrial and
handicrafts products.
The appellations of origin protect:
(a) geographical names of products, whose distinctive properties are mainly due to the
location or region where they are produced, if such properties are a naturalconsequence of either the climate or soil or of established manufacturing procedures
or processes;
(b) the name of a product which has become generally known through long-term use in
the course of trade as an indication that the product originates from a certain location
or region.
Geographical names which have become generally known through long-term use in the
course of trade as designations for certain kinds of products may not be protected by appellations of
origin.
The Patent Office shall grant the right to use the appellation of origin after obtaining the
expert opinion of the competent authorities, which must include:
(a) products which may be marked under that appellation of origin;
(b) locations or regions in which products marked under the appellation of origin
originate;
(c) production requirements a product must fulfill in order to be marked under the
appellation of origin;IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 35
(d) the required marking of products and further detailed requirements for grant of the
right to use the appellations of origin.
An appellation of origin shall be established:
(a) by entering the geographical name and kind of product to which the name relates in
the register of appellations of origin;
(b) on behalf of a foreign person, on the basis of an international agreement on reciprocal
protection of appellation of origin concluded by the Republic of Albania.
An appellation of origin is a collective right and may be used as such only by those who
produce or market the product for which an appellation of origin has been established.
Persons not authorized to use an appellation of origin may not use such appellation even they
add the words "type", "style", "fashion", "produced as" or similar words.
The protection of the appellation of origin shall be applicable against a geographical indication
which, although literally true as to the territory, region or locality in which the goods originate, falsely
represents to the public that the goods originate in another territory.
B. P ATENTS
2. Does your legislation grant patent protection to all categories of products or are there
any exceptions?  If so, please explain in detail what kind of exceptions exist and how they
comply with Article 27 of the TRIPS Agreement.
According to Article 3 of the "Law  on Industrial Property" (1994):
(1) In order to be patentable, an invention sh all be novel, shall involve an inventive step
and shall be industrially applicable.
(2) The following, in particular, shall not be regarded as inventions within the meaning of
paragraph (1):
(a) discoveries, scientific theories and mathematical methods;
(b) aesthetic creations;(c) schemes, rules and methods for performing mental acts, playing games or
doing business, and programs for computers;
(d) presentations of information.
(3) The provisions of paragraph (2) shall exclude patentability of the subject-matter or
activities referred to in that provision only to the extent to which a patent application
or patent relates to such subject-matter or activities as such.
(4) A patent shall not be granted in respect of an invention the publication or exploitation
of which would be contrary to public order or morality.
(5) No patents shall be granted for substances obtained through internal nuclear
transformations for military purposes.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 36
(6) No patents shall be granted for inventions of surgical, diagnostic or therapeutical
methods practised on the human or animal body, as they shall be regarded as
inventions which are not susceptible of industrial application within the meaning of
paragraph (1).  This provision shall not apply to inventions relating to substances anddevices for use in any of these methods.
(7) No patents shall be granted in respect of plant or animal varieties or essentially
biological processes for the production of plants or animals this provision does not
apply to microbiological processes or the products thereof.
3. Does your legislation, in accordance with Article 27.1 in combination with Article 31 of
the TRIPS Agreement, consider importation as "working" a patent (and therefore preclude
compulsory licensing, if a product is being imported)?
According to Article 27 of the 'Law on Industrial Property" (1994):
(1) Where the patent concerns a product, the owner of the patent shall have the right to
prevent third parties from performing, wit hout his authorization, the following acts:
(a) the making of a product incorporating the protected invention;
(b) the offering or the putting on the market of a product incorporating the
protected invention, the using of such a product, or the importing or stocking
of such a product for such offering or putting on the market;
(c) the inducing of other parties to perform any of the above acts.
(2) Where the patent concerns a process, the owner of the patent shall have the right to
prevent third parties from performing, wit hout his authorization, the following acts:
(a) the using of a process which is the subject matter of the patent;
(b) in respect of any product directly obtained by such process, any of the acts
referred to in paragraph (1)(b), even where a patent cannot be obtained for the
said product;
(c) the inducing of other parties to perform any of the above acts.
(3) The owner of a patent shall have no right to prevent third parties from performing,
without his authorization, the acts referred to in paragraphs (1) and (2) in the
following circumstances:
(a) where the act concerns a product covered by the patent after it has been put
on the market by the owner of the patent , or with his express consent, in the
Republic of Albania or in any territory specified in the bilateral or
multilateral agreements which have been acceded to by Republic of Albania;
(b) where the act is done privately and for non-commercial purposes, provided
that it does not significantly prejudice the economic interests of the owner of
the patent;
(c) where the act is done for purely experimental purposes or for scientific
research;IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 37
(d) where the act consists of the extemporaneous preparation for individual
cases, in a pharmacy or by a medical doctor, of a medicine in accordance
with a medical prescription or acts concerning the medicine so prepared.
(4) A patent shall also confer on its owner the right to prevent third parties from
supplying or offering to supply a person, other than a party entitled to exploit the
patented invention, with means, relating to an element of that invention, for carrying
it out, when the third party knows, or it is obvious in the circumstances, that those
means are suitable and intended for carrying out that invention.  This provision shall
not apply when the means are staple commercial products and the circumstances ofthe supply of such products do not constitute inducement to infringe the patent.
Follow-up question:
Please confirm whether your law, in acco rdance with Article 27.1 of the TRIPS
Agreement in combination with Article 31 of the TRIPS Agreement, considers importation as
"working/utilising" a patent (and therefore precludes compulsory licensing, if a product is
imported).
According to Article 27 of the Law on Industrial Property (1994), paragraph 1(b):
"(2) Where the patent concerns a product, the owner of the patent shall have the right to
prevent third parties from performing, wit hout his authorization, the following acts:
(a) the making of a product incorporating the protected invention;
(b) the offering or the putting on the market of a product incorporating the protected
invention, the using of such a product, or the importing or stocking of such a product
for such offering or putting on the market".
In such cases, it is considered as working patent;  so, no compulsory licence can be granted.
4. Does your legislation make the granting of  a compulsory licence subject to all the
conditions enumerated in Article 31 of the TRIPS Agreement?  Please cite the relevant
provisions of law.
The granting of compulsory licences is regulated under Articles 39 and 40 of the Law and
general provisions adopted by government (temporary) for granting a compulsory licence:
(1) On the request of any person who proves his ability to work the patented invention in
the Republic of Albania, made after the expiration of a period of four years from the
filing date of the application for the patent or three years from the grant of the patent,
whichever is later, the Patent Office may grant a non-exclusive, non-voluntary licence
if the patented invention is not worked or is insufficiently worked in the Republic of
Albania. The grant of the non-voluntary licence shall be subject to the payment ofequitable remuneration to the owner of the patent.
(2) A non-voluntary licence shall not be granted if the Patent Office is convinced that
circumstances exist which justify the non-working or insufficient working of the
patented invention in the Republic of Albania.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 38
(3) In deciding whether to grant a non-voluntar y licence, the Patent Office shall give both
the owner of the patent and the person requesting the non-voluntary licence an
adequate opportunity to present arguments.
(4) Any non-voluntary licence shall be revoked when the circumstances which led to its
granting cease to exist, taking into account the legitimate interests of the patent owner
and of the licensee.  The continued existence of these circumstances shall be
reviewed upon request of the patent owner.
Where the national security or public safety so requires, the Prime Minister may authorize,
even without the agreement of the owner of the patent or of the applicant, by notice published in theOfficial Journal, a government agency or a person designated in the said notice to make, use or sell an
invention to which a patent or a patent application for a patent relates, subject to payment of equitable
remuneration to the owner of the patent or the applicant.  The decision of the Prime Minister may be
the subject of an appeal to the Court.
1. An applicant for a compulsory licence shall be  required to prove that the requirements
for a compulsory licence have been complied with, and further that
a) the patentee was unwilling to grant a voluntary licence to exploit the patent
under appropriate conditions and within a reasonable period of time;
b) he is able to exploit the invention to the required extent.
2. The scope and duration of a compulsory licence shall be established by the court,
taking into account the purpose of the exploitation authorized by the compulsorylicence; a compulsory licence may be granted with or without limitation.  Unless
relinquished or cancelled, a compulsory licence shall have effect until expiration of
the term of validity fixed by the court or until the lapse of patent protection.
Compulsory licences shall be recorded in the Patent Register.
3. The patentee shall receive adequate compensation for the compulsory licence, which
shall be fixed, failing agreement between the parties, by the court.  The compensation
shall take into adequate account the economic value of the compulsory licence.  In
particular, it shall be commensurate with  the royalty the holder of the compulsory
licence would have paid on the basis of an exploitation contract concluded with the
patentee, taking into account the licensing conditions in the technical field of the
invention.
4. The holder of a compulsory licence shall have the same rights as the patentee in
regard to the maintenance of the patent and exercise of the rights deriving from
protection.
5. A compulsory licence may not be assigned or transferred to any other person.
Compulsory licences are non-exclusive and non-transferable, even in the form of sub-
licence, except with that part of the enterprise or goodwill which exploits such
licence.  The holder of the compulsory licence may not grant a licence of
exploitation.
6. The holder of a compulsory licence may relinquish his compulsory licence at any
time. If the holder does not begin exploitation within one year from the definitive
grant of the compulsory licence, the patentee may claim modification or cancellation
of the compulsory licence.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 39
7. The patentee may request modification or cancellation of a compulsory licence if the
circumstances on which it was based cease to exist and are unlikely to occur again.
Modification or cancellation shall take a form that does not prejudice the legitimateinterests of the holder of the compulsory licence.
Follow-up question:
Does your legislation provide for the granting of compulsory license to allow the
exploitation of a patent ("second patent") which cannot be exploited without infringing another
patent ("the first patent") as mentioned in Article 31 (l) of the TRIPS Agreement?  If so, whichconditions shall apply for the granting of such licences in your legislation?
Our legislation does not provide (until now) for the granting of compulsory licence to allow
the exploitation of a patent ("second patent") which cannot be exploited without infringing another
patent ("the first patent").
5. Does your legislation provide for the principle of the reversal of burden of proof in a
process patent litigation?  Please cite the relevant provisions of law.
Our law provides for such a principle in its Articles 41-42:
(1) Subject to this Law, the performance of any act referred to in Article 27(1), 27(2) and
27(4) in Albania by a person other than the owner of the patent, and without the
consent of the latter, in relation to a product or process falling within the scope of
protection of the patent shall constitute an infringement of the patent.
(2) Subject to this Law, the performance of any act referred to in Article 27(1), 27(2) and
27(4) in Albania by a person other than the applicant, and without the consent of the
applicant, in relation to a product or process falling within the scope of provisional
protection conferred on a published patent application under Article 20(3) shall
constitute an infringement of that provisional protection.
(1) The owner of a patent and the applicant fo r a patent shall have the right to institute
proceedings in the Court against any person who has infringed or is infringing the
patent or the provisional protection conferred on a published patent application.  The
owner of the patent and the applicant shall have the same rights against any person
who has performed acts or is performing acts which make it likely that suchinfringement will occur ("imminent infr ingement").  The proceedings may not be
instituted after five years from the act of infringement.
(2)(a) If the owner of the patent proves that an infringement has been committed or is being
committed, the Court shall award damages and shall grant an injunction to preventfurther infringement and any other remedy provided in the general law.
(b) If the owner of the patent proves immi nent infringement, the Court shall grant an
injunction to prevent infringement and any other remedy provided in the general law.
(3)(a) Unless the licence contract provides otherwise, any licensee may request the owner of
the patent to institute Court proceeding s for any infringement indicated by the
licensee, who must specify the relief desired.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 40
(b) Such licensee may, if he proves that the owner of the patent received the request but
refuses or fails to institute the proceedings within three months from the receipt of the
request, institute the proceedings in his own name, after notifying the owner of the
patent of his intention.  The owner of the patent shall have the right to join in theproceedings.
(c) Even before the end of the three-month period referred to in subparagraph (3)(b), the
Court shall, on the request of the licensee, grant an appropriate injunction to prevent
infringement or to prohibit its continuation, if the licensee proves that immediate
action is necessary to avoid substantial damage.
(4) Where the subject matter of the patent is a process for obtaining a product, the burden
of establishing that a product was not made by the process shall be on the alleged
infringer if either of the following conditions is fulfilled:
(a) the product is new;  or
(b) a substantial likelihood exists that the product was made by the process and
the owner of the patent has been unable through reasonable efforts to
determine the process actually used.
Articles 12, 14 and 17 of Civil Procedure Code provide also the principle of burden of proof
in a process patent litigation.
C. P
ROTECTION OF UNDISCLOSED INFORMATION
6. Please explain in detail if your legislation ensures that undisclosed test or other data
submitted by an applicant to the responsib le State agency in the procedure for market
authorisation of a pharmaceutical or of an agricultural chemical product is protected against
disclosure and against unfair commercial use by a competitor, for example by prohibiting a
second applicant from relying on, or from referring  to the original data of the first applicant,
when applying subsequently for market authorization for his own product.  Does your
legislation provide for exceptions to this?  If yes, under what conditions would such exceptions
apply?   Does your legislation set a specific term of protection for undisclosed test or other dataof the first applicant?
Protection of undisclosed test or other data submitted by an applicant in the procedure for
market authorization of a pharmaceutical is prov ided under the "Regulation of the Commission for
the Verification of Manufacturing Conditions on Pharmaceutical" point 12 and under the Regulation"On a supplement and a change on the regulation No. 393 dated 20 January 1998 - On the
Registration of Drugs in the Republic of Albania" point 2.  In both of them it is defined that this
information is confidential and, after the verification by the Commission, the documentation is
deposited in the National Center of Drugs Control together with a copy of the marketing
authorisation and is exclusive property of the Albanian authorities.  The time period during whichAlbania protects data submitted to obtain marketing approval for pharmaceuticals is not defined
(normally, it can't be less than the period of the working of the factory or the validity of the
marketing authorization).  Each pharmaceutical company submits the dossier for any drugs to get
marketing authorization along with the bioequivalent  study, when required.  All this information is
protected and other applicants or third persons are not allowed to consult it.  The legislation does notprovide for exceptions to this.
Concerning agricultural chemical products, data submitted by companies in order to obtain
marketing authorization is protected by the Decision of the Council of Ministers No. 72 datedIP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 41
15 February 2001 "On the Approval of the regulation of Plant Protection Products".  In Article 6 of
this regulation it is defined the protection of data is ensured upon request of the applicant and no time
limit is foreseen for this.
D. E NFORCEMENT
7. Please indicate remedies provided by your legislation, which constitute effective
deterrents to infringements of intellectual property rights.
According to the "Law on Indus trial Property" (1994) (articles 83, 89 and 101) and Article 19
of the Law "Some changes and supplements on th e Law on industrial property" (1999) constitute
effective deterrents to infringement of industrial property rights.
The owner of the registered mark shall have th e right to institute proceedings in the Court
against any person who has infringed or is infringing his rights under the conditions of Article 83 of
the Law.  The owner shall have the same right against any person who has performed acts or is
performing acts which make it likely that such infringement will occur ("imminent infringement").
If the owner of the registered mark proves that an infringement has been committed or is
being committed, the Court shall award compensation.  In these compensations will be included the
profit of the person who has performed the infringe ment, the damage which has incurred the owner of
the mark except the one is included in the profit of the breaker and the expenses including the lawcosts.  The Court shall grant an injunction to prevent further infringement and any other remedy
provided in the general law.
If the owner of the registered mark proves imminent infringement, the Court shall grant an
injunction to prevent further infringement and any other remedy provided in this Law and in the Codeof Civil Procedure.
In addition to the measures specified in the previous paragraphs, the Court may re-establish
the situation that existed before the infringement and to stop infringing actions, to proceed with an
effective seizure of the goods and, when necessary, to destroy illegally used marks, tools that could be
used to manufacture the goods and the goods themselves in absence of possibility to remove any
illegally mark from such goods.
The judicial authorities shall have the authority to order prompt and effective provisional
measures:
- to prevent an infringement of any intellectual property right from occurring, and in
particular to prevent the entry into channels of commerce in their jurisdiction of
goods, including imported goods immediately after customs clearance;
- to preserve relevant evidence in regard to the alleged infringement.
The new Article 89(3) of the Law on Industrial Property states: In addition to the measures
specified in paragraph 2(a) of this Article, the Co urt may re-establish the situation that existed before
the infringement and to stop infringing actions, to proceed with an effective seizure of the goods and,
when necessary, to destroy illegally used marks, tools that could be used to manufacture the goods
and the goods themselves in absence of possibility to remove any illegally used mark from suchgoods.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 42
Any natural or legal person who performs an ac t which he knows constitutes an infringement
of the patent, mark or design shall commit an offence and shall be punishable from the Court by a fine
between lek 20,000 and 100,000.
The Penal Code, as amended by the Law 7883 dated 24 January 2001, under Article 288(a)
states that the unlawful production and distribution on commercial scale of industrial and nutritive
articles and goods constitutes a criminal infringement and is punishable with fine or imprisonment up
to 2 years.  This offence, when committed in co llaboration with other persons, more than once, or
when it has caused serious consequences, is punishable with imprisonment from 3 to 10 years.
Article 50 of Copyright Law as amended by the Law No. 8594 dated  6 April 2000 underlines
that the translation, adaptation, sound or visual recording, reproduction, the transmission of an artistic
work without the authorization of its author, which conflicts with the provisions of this law or the
international conventions ratified by the Republic of Albania, when the author's moral and economic
rights have been infringed, constitutes a criminal work and is penalized by fine or imprisonment up to
one year.
Whereas the Penal Code, as amended by the Law 7883 dated 24 January 2001, under
Articles 147-149 underlines fines and imprisonment by up to four years for misappropriation of
property through fraudulence by introducing a work of art and culture as the original or by changing
the authenticity of the authorship;  and fines and imprisonment by up to two years for partially orcompletely plagiarizing somebody else's work or for unauthorized reproduction of somebody's work.
According to Article 82(4) of the Customs C ode, the customs authorities upon request of the
holder of a trademark or patent of production or other neighbouring rights specified in the
Implementing Provisions of this Code, may prohibit their release in free circulation, the exportation,the re-exportation and their placing under the suspensive procedure of the goods that are recognized to
be counterfeited or pirated goods, according to the procedure provided for in the Implementing
Provisions of this Code.
And the Implementing Provisions on Customs C ode, Article 120(1) state that the General
Directorate of Customs may suspend the release of the goods or seize the goods depending on the
situation.
The Code of Civil Procedure authorizes judges to order the payment of monetary damages
adequate to compensate for the injury done.  Article 68 of this Code states:  "When a sum of money
or a removable thing is requested the value is determined on the basis of the amount indicated or of
the value declared by the plaintiff. In the absence of indication or of declaration, it is accepted thatthe determination of the value is a competence of the court".  And any person has the right to claim
compensation of costs and damages caused by the infringer.  Under Article 106 it is stated among
others:  "In its final decision, the court charges the party whose lawsuit has been dropped, to pay the
judicial expenses in conformity with article 102 of this Code including the payment for one
advocate."
Article 67 of the Law on Competition authorizes courts to impose fines not less than
lek 10,000 and not more than lek 200,000 to any person or company who does not respect business
secrets.IP/Q/ALB/1, IP/Q2/ALB/1,
IP/Q3/ALB/1, IP/Q4/ALB/1
Page 43
8. Please describe any new initiatives that are planned to improve enforcement of
intellectual property rights in your country, particularly initiatives related to criminal
enforcement.
According to Article 348 of the Code Civil Proce dure, all the cases of the infringement of the
industrial property rights will be tried by the commer cial section of the District Court of Tirana.  In
respect of this several seminars and training of judges and prosecutors are being planned in
cooperation with WIPO and EPO.
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