RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/324/Add.1
26 November 2001
(01-6023)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Sri Lanka to questions posed by Japan
Addendum
By means of a communication from the Permanent Mission of Sri Lanka dated
22 November 2001, the Secretariat has received the following responses to questions posed by Japan,
as circulated in document IP/C/W/322.
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A. COPYRIGHT AND RELATED RIGHTS
1. Please explain exceptions or exemptions of the National Treatment and Most-Favoured-
Nation Treatment under the Copyright and Neighbou ring Rights Law, if any, as permitted in
Articles 3 and 4 of the TRIPS Agreement.
No exceptions or exemptions.
B. TRADEMARKS
2. Regarding "well-known trademark", please explain how legislation of your country
implements Article 16.2 and 16.3 of the TRIPS Agreem ent, which Article 6bis of the Paris Convention
shall apply, mutatis mutandis, to.  Please cite the relevant provisions of your country's law.
(a) Under the present Law, the well-known marks are protected.  (Section 100(1)(d) of
the Code).
(b) This section has been recast in the proposed Law to keep it in line with the relevant
provisions of the TRIPS Agreement.
C. PROTECTION OF UNDISCLOSED INFORMATION
3. Please explain how legislation of your county provides for the protection of "Undisclosed
Information" as required by Article 39.1 and 39.2 of the TRIPS Agreement.  Please explain in detail
and please cite the relevant provisions of your country's law.
(a) The proposed Law (proposed Section 142(6)(b)) provides for the protection of
undisclosed information, under the Law of unfair competition.
(b) Any act or practice, in the course of industrial or commercial activities, that results in
the disclosure, acquisition or use by others, of undisclosed information without theIP/C/W/324/Add.1
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consent of the person lawfully in control of that information and in a manner contrary
to honest practices constitutes an act of unfair competition.
(c) Information shall be considered "undisclosed information" if:
(i) it is not, as a body or in the precise configuration and assembly of its
components, generally known among, or readily accessible to, persons within
the circles that normally deal with the kind of information in question;
(ii) it has actual or potential commercial value because it is secret; and(iii) it has been subject to reasonable steps under the circumstances by the rightful
holder to keep it secret.
Any act or practice, in the course of industrial or commercial activities, shall be
considered an act of unfair competition if it consists or results in;
(1) an unfair commercial use of secret test or other data, the origination of which
involves considerable effort and which have been submitted to a competent
authority for the purpose of obtaining approval, of the marketing of
pharmaceutical or agricultural or chemical products which utilize new
chemical entities, or
(2) the disclosure of such data, except where necessary to protect the public, or
unless steps have been taken to ensure that the data is protected against
unfair commercial use.
The undisclosed information for the purpose of the Code shall include:
(i) technical information related to the manufacture of goods or the provision of
services; or
(ii) business information which includes the internal information which an
enterprise has developed so as to be used within the enterprise.
(d) The aggrieved persons may seek civil remedies including injunctions and damages.
Moreover, any unauthorized disclosure of undisclosed information also constitutes a
punishable offence.
4. If your legislation ensures that undisclosed test or other data submitted by an applicant to the
responsible State agency in the procedure fo r market authorisation of a pharmaceutical or an
agricultural chemical product is protected against disclosure and against unfair commercial use by a
competitor, for example by prohibiting a second applicant for a similar product from relying on
original data of the first applicant, when applying subsequently for market authorisation for a similar
product, please explain it in detail.  Does legislation of your country provide for exceptions to this?Does legislation of your country set a specific term of protection by the responsible State agency for
undisclosed test or other data of the first applicant?  If yes, please explain such specific term in detail,
citing the relevant provisions of law.
Under the proposed law the required safeguards are offered under the law of unfair
competition.  The proposed Section 142(6)(d) provides as follows:
Any act or practice, in the course of industrial or commercial activities, shall be considered an
act of unfair competition if it consists or results in:IP/C/W/324/Add.1
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(i) an unfair commercial use of secret test or other data, the origination of which
involves considerable effort and which have been submitted to a competent authority
for the purposes of obtaining approval of the marketing of pharmaceutical or
agricultural or chemical products which utilize new chemical entities; or
(ii) the disclosure of such data, except where necessary to protect the public, or unless
steps have been taken to ensure that the data is protected against unfair commercial
use.
Thus such tests and data will be protected against unfair commercial use and disclosure as
required by Article 39.3 of the TRIPS Agreement.
The law of unfair competition which includes the protection of undisclosed information does
not establish time limits for the protection of such information.
D. ENFORCEMENT
5. Please indicate the remedies which the judicial authorities order regarding each intellectual
property rights provided in the TRIPS Agreement, including injunctions, damages, expenses,
destruction or disposal of infringing goods, materials or implements for their production.  Please
explain the criteria and the way of calculation to decide the amount of the damages which judicial
authorities order to the infringer to pay the right holder.
(a) Damages, injunctions, expenses of litigation, destruction or disposal of infringing
goods, material or implements used for their production.
(b) The amount of damages is a matter in the discretion of the judicial authorities.  Upon
the establishment of the actual damages, the judicial authorities will make the order.
(c) Under the proposed Law the aggrieved party is entitled to claim either the actual
damages or statutory damages.
6. Please explain the kind and amounts of cr iminal penalties including implement and fines
regarding intellectual property rights, citing the relevant provisions of your country's law.  In
particular, are the crimes persecuted only when the injured party has made a formal complaint?
Please explain whether penalties are consistent with Article 61 of the TRIPS Agreement, whichrequires provisions for a sufficient deterrent, consistently with the level of penalties applied for crimes
of a corresponding gravity.
(a) The penalties are Rs. 20,000/- or imprisonment for a period not exceeding six months
or both.  The punishment can be doubled upon the second or subsequent conviction.(Sections 144 to 156) Under the proposed Law the fine has been enhanced to
Rs.500,000/-.  Moreover, there are certain newly introduced offences.
(b) The crimes are mainly prosecuted when the injured party makes a formal complaint
to the police.
(c) The penalties are in line with the TRIPS requirements.  However, as mentioned
above, the fine has been increased.
7. Please indicate titles of laws and regulations and their provisions in which the suspension of
the release of counterfeit trademark or pirated copyright goods is prescribed, as stipulated in
Article 51 of the TRIPS Agreement.IP/C/W/324/Add.1
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(a) The Code of Intellectual Property Act No.52 of 1979, (as amended by Act No. 30 of
1980, No. 22 of 1983, No.17 of 1990, No.13 of 1997 and No.40 of 2000).
(b) The proposed amendments to the Code of Intellectual Property Act No.52 of 1979.
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